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HomeMy WebLinkAboutDecision - 4-R LUBA RemandDeschutes 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 August 4, 2010 Please see directions for completing this document on the next page. DATE: August 3, 2010 FROM: Paul Blikstad Department CDD Phone # 6554 TITLE OF AGENDA ITEM: Board discussion/deliberations on the applications for a plan amendment and zone change from Exclusive Farm Use to Surface Mining for property in Millican. The applicant is 4-R Equipment. PUBLIC HEARING ON THIS DATE? No, the hearing has already been held. BACKGROUND AND POLICY IMPLICATIONS: The plan amendment and zone change applications were previously approved by the Board. The Board's decision was appealed to LUBA by Tammera and Clay Walker. LUBA remanded the County's decision for further proceedings. The Board held a new hearing on the remanded issues. A new written decision by the Board is necessary, and must be completed quickly to meet the mandated remand timeline. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: The Board will need to decide whether the issues raised on appeal to LUBA and remanded to the County by LUBA have been adequately addressed. ATTENDANCE: Paul Blikstad, CDD, and Laurie Craghead, County Legal Counsel DISTRIBUTION OF DOCUMENTS: Planning staff will take care of the required mailing of the Board's new decision. BRYA N T, LOVLII N & JARVIS, PC AI1(WNi\,Ai LAW 1[a jABla Sii FP 1975 Neil R. Bryant Robert S. Lovlien John A. Berge Sharon R. Smith John D. Sorlie Mark G. Reinecke Melissa P. Lande Kitri C. Ford Paul J. Taylor Kyle D. Wuepper Jeremy M. Green Helen L. Eastwood Peter A. Christoff Melinda Thomas 591 S.W. Mill View Way Mail: P.O. Box 880 Bend, Oregon 97709 Phone: (541) 382-4331 Fax: (541) 389-3386 W W W.BLJLAWYERS.COM July 28, 2010 HAND DELIVERED DESCHUTES COUNTY BOARD OF COMMISSIONERS 1300 NW WALL ST. BEND, OR 97701 Re: Walker vs. 4-R Equipment, LLC (Second Remand Hearing) File No.: PA-04-8/ZC-04-6 Dear Commissioners: This letter is being submitted as the Applicant's response to written public testimony that was submitted in the above -captioned matter. The issues raised by Minerva Soucie, Frankie Watson and Tammie and Clay Walker have essentially been resolved in the prior decisions of the County Commissioners. The letter from Keith and Janet Nash did, in fact, address issues that are before the County Commission in this remand hearing. Enclosed with this letter is the response from Roger Borine regarding the Nash letter. We would ask that these comments be made a part of the record in this matter. Aside from that, Applicant has no further comment. Please call me if have any questions. Very truly yours, 4 -21z -A ROBERT S. LOVLIEN RSL/alk Encl. cc: 4-R Equipment, LLC 6829-084 110 DEcE„„r----1 1 JUL 28 2010 IbLi9 J BOARD OF COMMISSIONERS ONERS ADMINISTRATION Bob Lovlien From: Roger Borine [rborine@bendbroadband.com] Sent: Wednesday, July 28, 2010 8:59 AM To: Bob Lovlien Subject: RE: 4-R Equipment/Spencer Wells Pit Good Morning Bob, I have reviewed the four letters of opposition for the 4R application. I have no comments on the letters from Walker, Watson or Soucie. Comments regarding the Nash letter: 1. P-2 Para 1 — I do not interpret that LUBA clearly defined the impact area as the Nash letter states. In the Nash letter P-1, paragraph 1 "Remand is necessary and to determine the size of the impact area ... etc." One reason for the remand was to determine an impact area based on whether "factual information indicates significant potential conflicts" with grazing on those allotments and the "Flat Pasture" was determined to be the impact area. 2. P-2 Para 3 — The remand did not ask to address the Millican or Pine Mtn Allotments. The permittees for these allotments did not participate. Apparently they determined there would be no negative impacts on their cattle or ranching operations. 3. P-2 Para 4 — Sage grouse appear to be an issue for the EWR management more than the SWM. It would appear from the Nash letter their operations are being restricted as a result of grazing impacts on sage grouse and if the SWM would negatively impact sage grouse they may face additional restrictions. Not knowing all the background from the burden of proof and testimony, it would appear that BLM and ODFW have provided input on sage grouse and issues have been resolved and are no longer an issue with LUBA. 4. P-2 Para 6-8 — The methodology used for determining range condition is consistent with that used by B.M. During my discussions and reviews (3/23/2010) with the BLM Range Manager, there was no reference o allowing supplemental feeding on the allotment. The planned use period and season of use for grazing were als provided by BLM. No additional restrictions were identified in management plan for the Horse Ridge Allotment. would hope that EWR has an updated supplemental plan approved by BLM, but it has not been produced as «,vidence. Let me know if you have any questions. Roger From: Amber Kirk [mailto:Amber@bljlawyers.com] On Behalf Of Bob Lovlien Sent: Tuesday, July 27, 2010 9:06 AM To: rborine@bendbroadband.com Subject: 4-R Equipment/Spencer Wells Pit 07/27/10 Roger: Attached are copies of opposition letters that the County has received. Please review these and give me a call with your comments. Robert 5. Lovlien. 1 Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: July 12, 2010 TO: Board of County Commissioners FROM: Paul Blikstad, Senior Planner RE: Second Remand hearing from LUBA appeal — 4-R Equipment BACKGROUND 4-R Equipment (Ron Robinson) filed applications for a plan amendment to add the subject property to the County's Goal 5 surface mining inventory of mineral and aggregate resources, and a zone change to rezone the property from Exclusive Farm Use — Horse Ridge subzone (EFU-HR) to Surface Mining (SM). These applications were heard by the Board under two separate hearings processes, the second based on a Land Use Board of Appeals (LUBA) remand. The latest Board decision (October 1, 2008) was again appealed to LUBA by Clay and Tammera Walker. LUBA issued a final opinion and order on September 22, 2009, and remanded the County's decision. The County is required to hold a new hearing, and issue a written decision within a 90 -day period, which began on June 17, 2010 by written letter from the applicant's counsel (Bob Lovlien). I have scheduled a hearing before the Board for Monday, July 19th at 10:00 a.m. All the parties to the process were notified of the hearing. LUBA'S ORDER LUBA's order listed the opponents (petitioner's) assignments of error. The two remaining issues identified by LUBA dealt with potential impacts to agricultural uses in the area surrounding the proposed mining site. The final opinion and order, on pages 7-8 states the following: "With respect to the question of conflicts with agricultural uses within the impact area under OAR 660-023-0180(5)(b)(E), intervenor argues that the county reasonably relied on the fact that 40 -acre allotment is separated from the subject property by a road and fencing and that the mining site will be surrounded by a 200 -foot buffer area, to conclude that mining operations will not conflict with grazing on the 40 -acre allotment. 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 4-R Equipment — Staff memo Page 1 Quality Services Performed with Pride located in the vicinity of the mining site is the adjacent 40 -acre parcel. The county apparently failed to appreciate that other Evans Wells 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 660-023- 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 Wells 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 Wells 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. Even if it is presumed that the one-half mile impact area chosen by the county is justified for purposes of OAR 660-023-0180(5)(a), remand is necessary in any case, because the county's findings regarding conflicts with agricultural uses under OAR 660-023- 0180(5)(b)(E) also appear to be based on the misapprehension that the only grazing within the impact area occurs on the adjacent 40 -acre parcel. The Nashes testified, and intervenor does not dispute, that other Evans Wells Ranch grazing allotments are located within the one-half mile SMIA overlay zone. Finally, the county's findings under OAR 660-023-0180(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 farming 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 660-023-0180(5)(e)." The applicant has submitted an agricultural report for the Millican area near the proposed mining site. The report references the term "pasture," and staff assumes this means non- irrigated ground (i.e. dry land used only for seasonal grazing). The report indicates that the "Flat Pasture" is the only pasture in the Horse Ridge Allotment, and is the only pasture in this area that shares a common boundary with the mining site. The report also indicates that the Flat Pasture should be considered the "impact area" referenced by LUBA above. Staff notes that the report states that the optimal period for grazing annual and perennial grasses by livestock near the mine is in late March, April, May and early June, and that the "full" mining operations will occur November -February. Staff believes that the mining and crushing operations will occur November -February. However, staff believes that the loading and hauling of materials from the site will potentially occur year round. Staff believes that the applicant needs to address mining activity year round in the report. The report appears to state that based on the existing noise already at the site and in the area, the noise from the mining operations will not impact the cattle grazed in the area. It states on 4-R Equipment — Staff memo Page 2 page 6: "The SWM operation's truck traffic will increase slightly on Spencer Wells Road and Hwy 20. The SWM is not part of the Horse Ridge allotment and activities will not restrict or disturb livestock movement in the Flat Pasture." The report also states on page 6: "The optimal period for grazing 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 northeastern 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." Staff has contacted applicant's counsel and author of the report, Roger Borine, will be at the hearing on July 19th. Staff believes there will likely be questions for Mr. Borine at the hearing. am submitting for your review copies of the following: • The Board's October 1, 2008 written decision on PA -04-8, ZC-04-6 • LUBA final opinion and order dated September 22, 2009 • Applicant's letter received 6-17-10 requesting the County start the remand process • Agricultural Report Please contact me at your convenience if you have any questions. 4-R Equipment — Staff memo Page 3 REVIEWED LEGAL COUNSEL For 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 Planning Division mailed notice of the public hearing scheduled for January 18, 2005 to property owners within 750 feet of the subject property and published a notice of the proposal in the Bend Bulletin. Hearings were held before the Deschutes County Hearings Officer on January 18, 2005 and on April 20, 2005. On June 1, 2005, the Hearings Officer issued her recommendation. The County Board of Commissioners held a public hearing on August 23, 2005 to consider this request. On November 2, 2005, the Board of Commissioners ordered that the record remain open until November 30, 2005 in order to allow the Applicant time to provide an ESEE Analysis for a one-half mile impact area. The Board held a subsequent' public hearing on December 14, 2005 for public comment on the ESEE Analysis. The hearing was continued from December 14, 2005 to January 25, 2006. The Board announced its decision on March 1, 2006. On June 15, 2006, applicant's legal counsel, Mr. Robert Lovlien, submitted a letter waiving the 180 -day period without specifying a time 1 — Final Decision 6829-076 301v2 doc DC 2008.536 period. On September 8, 2006, the County received written notice from Mr. Lovlien, saying that Mr. Lovlien would be leaving for a two month sabbatical and requesting that the mailing of the Board's written decision be delayed until after Mr. Lovlien returned on November 27, 2006. The Board of County Commissioners approved the amendment and zone change by Decision dated December 27, 2006. The Commissioners' Decision was appealed to the Land Use Board of Appeals in the case of Walker vs. Deschutes County and 4-R Equipment, LLC, LUBA No.: 2007-013. In the Walker case, LUBA sustained all or part of the second, sixth, eighth, ninth and twelfth assignments of error and denied the remaining assignments of error alleged by the Petitioners. The eleventh assignment of error has not yet been resolved. The County set a public hearing on Monday, June 2, 2008 pursuant to the LUBA remand order. The Board of County Commissioners then announced its decision approving the plan amendment and zone change on July 23, 2008. 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. Sage Grouse. The Board readopts its previous finding where it declined to expand the impact area to include a sage grouse lek listed as Site No. DE0999-01 on the County's wildlife inventory. The Commissioners had declined to expand the impact area to include a sage grouse lek located near the subject property. The Commissioners concluded that since the mining site is outside of the SBM (sensitive bird and mammal) Combining.Zone, and that the sage grouse site was protected by the SBM Combining Zone, that the site did not represent a significant potential conflict requiring the expansion of the impact area. However, LUBA, in. its Decision, found as follows: "According to Petitioners, sage grouse use of the leks is dependent upon flight patterns that cross over or near the subject property, and 'factual information in the record indicates that the mining activity may disrupt those flight patterns, which in turn may disrupt use of the leks. Absent a more focused response from the County or intervenor, we agree with the Petitioners that the County's findings are inadequate to explain why the County can reasonably rely on the SBM Zone to conclude that there will be no 'significant potential conflicts' with the leks and thus decline to expand the impact area to include them."' In response to this finding, the Intervenor requested that Gary Hostick, a certified wildlife biologist, review the evidence that is in the record. Mr. Hostick's report is attached hereto as Exhibit "1" and incorporated herein by reference. Gary Hostick analyzed a map, "Figure 12. Sage Grouse Movement Patterns Identified Through Radio -Marked Bird Locations, Prineville District, BLM, 1991 to 1993", showing sage grouse movement patterns based on radio -marked bird locations from 1991 to1993. He concludes that it would be erroneous to deduce that a bird flew directly through the planned rock pit area. The map only indicates that a sage grouse was located both at the lek and at Broadrnan Rim. The bird may have actually taken a different flight path or moved between two locations via a combination of flights. The schematic map was meant to show well known grouse behavior when female sage grouse move between nest areas and leks during the nesting season, and not to indicate flight paths or patterns. 2 — Final Decision 6829-076 301v2.doc Hostick also references the consultation with the U.S, Bureau of Land Management and the Oregon Department of Fish & Wildlife before the Application was submitted to Deschutes County and indicates they had no concerns about sage grouse. It is also instructive to set out the purpose clause of the Sensitive Bird and Mammal Habitat Combining Zone, DCC 18.90.010. "The purpose of the Sensitive Bird and Mammal Combining Zone is to insure that sensitive habitat areas identified in the County's Goal 5 sensitive bird and mammal inventory as critical for the survival of the northern bald eagle, great blue heron, gold eagle, prairie falcon, osprey, great grey owl, sage grouse and Townsend's big -eared bat are protected from the effect of the conflicting uses or activities which are not subject to the Forest Practices Act. This object shall be achieved by implementation of the decision resulting from the economic, social, environmental and energy analysis (ESEE) for each inventoried sensitive habitat area." The sensitive habitat area is site-specific for each sensitive bird or mammal location. The sensitive area to be protected for the sage grouse lek is a radius of 1,320 feet. Here, the proposed zone change is not within 1,320 feet from any lek. Applicant performed a survey of habitat in the rock pit area and did not discover any additional strut sites or evidence of nesting sites. The County has not received any additional comments from BLM or ODF&W. The SBM Habitat Combining Zone is designed to protect known sensitive bird sites, including sage grouse leks. The County Commissioners concur with the conclusions of Mr. Hostick with regard to the issues raised regarding the sage grouse habitat. There is no evidence that sage grouse habitat will be impacted. ODF&W has submitted comments and has acknowledged that the mitigation proposed by the Applicant will be sufficient to address their concerns. BLM has had repeated opportunities to comment and has decided not to make any further comments. 2. Evans Well. Ranch. The Board concludes that there will be no significant potential conflict with the Evans Well Ranch. The Petitioners cited testimony from the owners of the Evans Wells Ranch that their BLM grazing allotment is within the one-half mile impact area, and that blasting and other impacts of the proposed mining could cause cattle on that allotment to abandon that pasture and instead graze more heavily on privately owned pastures on the ranch itself, outside the Impact area. Petitioners speculated that if mining operations impacted sensitive grouse populations, BLM could restrict grazing on the ranchers' allotments in the area. -LUBA concluded as follows: °* * * in view of the above -noted testimony, that the proposed mining will conflict with nearly cattle operations, the county must explain in its findings why it believes, despite that testimony, that the proposed mining will not result in 'significant potential conflicts' with respect to the Evans Wells Ranch." 3 — Final Decision 6829-076 301v2 doc The Evans Wells Ranch (Nash) grazing allotment on BLM land consists of 22,285 acres. The allotment all lies west of Spencer Wells Road and south of U.S. Highway 20. A copy of the location of the grazing allotment is attached hereto as Exhibit '2" and incorporated herein by reference. It is the practice of the BLM to assign a time of year and length of time for each pasture within the grazing allotment. One 40 -acre portion of the 22,285 -acre grazing allotment does abut the southwest corner of the proposed mining site. The proposed mining site will be fenced, prohibiting grazing cattle from entering into the site itself. The abutting 40 -acre portion of the grazing allotment amounts to only less than one percent (1%) of the total grazing allotment for Evans Wells Ranch. More than 22,245 acres of the grazing allotment lie outside of the impact area. Both site visits and aerial photographs confirm that there are no irrigated pastures within three (3) miles of the subject property. Private property borders three sides of the 40 -acre parcel of grazing pasture, The Board relies on evidence from the Applicant, who operates a similar mining site east of Alfalfa. That property is surrounded by a BLM grazing allotment owned by Wayne Singhose. Mr. Singhose has a key to the Alfalfa mining site, allowing his cattle to use the water impound, if necessary. He also uses the scale to weigh hay that he hauls from his ranch. 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 "significant potential conflict" with respect to the Evans Wells Ranch grazing allotment and the operation of the ranch. 3. Religious and Cultural Visits. After reviewing the evidence, the Board concludes that there are no existing uses for the purposes of OAR 660-023-0180(5)(b)(A). The Petitioners, in their assignment of error, cited testimony that the area around the pictograms on the Walker property include numerous burial sites, and that tribal members visit the area to conduct religious and cultural ceremonies honoring their ancestors. In response to this testimony, LUBA found as follows: "A tribal cultural resource protection specialist stated that the proposed mining operations would destroy and area that demands quiet for tribal members that visit for religious and cultural purposes. Absent some response from the Intervenor or the County on this issue, we agree with the Petitioners that remand is necessary for the County to evaluate whether such visits are 'existing uses for purposes of OAR 660-023- 0180(5)(b)(A) and if so, to evaluate alleged conflicts with those uses."' The pictograms themselves are located within 500 feet of U.S. Highway 20, which is an east/west highway across the State of Oregon. The pictograms are located north of U.S. Highway 20 across the highway from the proposed mining site. Furthermore, the pictograms are 3,044 feet from the nearest point that mining would occur on the subject property. No evidence was presented that tribal members have been visiting the pictograms on a regular basis for religious and cultural purposes. However, there was evidence in the record of some religious and cultural activities. The Applicant has offered to restrict any blasting activities when it is notified that there would be a cultural or religious activity scheduled on the Walker property. Applicant has agreed to a condition of approval accordingly. Since the Applicant has consented to such a condition of approval, there would be no impact on these activities. 4 — Final Decision 6829-076 301v2.doc The Board does not find that such visits are therefore "existing uses" for purposes of OAR 660-023-0180(5)(b)(A). Furthermore, the activities that would occur on the proposed surface mining site will not generate any more noise or disturbances than already exist with the presence of U.S. Highway 20. Before the Applicant submitted the application for the proposed surface mine, it had a complete archeological survey performed on the subject site. No archeological or cultural or religious uses were discovered on the subject property itself. Furthermore, the Applicant has not proposed any activity within that small segment of the Dry Canyon area on the subject property. The Board recognizes that there are pictographs on the Walker property. However, those cultural sites are separated from the subject property by over a 1/2 mile. As was noted in the last public hearing, the distance is approximately equal to that from Deschutes County's office building to Pilot Butte. There is no evidence that there would be any impact from the proposed use on these cultural sites. The subject property is separated from the cultural sites by US Highway 20. The activities that occur in any one year will have no more impact than a single semi truck passing on US Highway 20. The Applicant has demonstrated with the operation of other surface mines that dust will not be an issue. This can be verified at the O'Neil Junction surface mine where blasting occurs within 250 feet of the main North/South Pacific Gas Transmission Line. Activities also occur in much shorter proximity to existing housing and agricultural uses than what would be seen in the Millican Valley. The Applicant points out that the Millican Valley has been severely impacted by off road vehicle use, as well as, US Highway 20. The activities on the subject property will be nominal compared to the activities that are already occurring in the Millican Valley Area. Since there is no evidence of any regular, ongoing religious or cultural activities on the Walker property, and since the Applicant has agreed that upon prior notice, it would restrict any blasting activities on the property during any such religious or cultural activities, the Board concludes the zone change will not have an impact on any cultural or religious activities that might occur on the Walker property. 4. Coyote Well. The Board concludes that monitoring points at the perimeter of the mining site will prevent any adverse impact to the Coyote Well. Petitioners argued that the County failed to evaluate whether vibrations from blasting would impact the Coyote Well structure. LUBA concluded that remand was necessary so the County could adopt findings to address this issue. In response to this assignment of error, the Applicant contracted with Kleinfelder, Inc. to analyze the vibrations from blasting operations at the proposed mining site. The purpose of the review was to assess potential blasting vibrations and impact in response to structures and historical artifacts, as identified in the LUBA Decision. A Technical Memorandum was prepared by William C.B. Gates, Ph.D., P.E., C.E.G. and R. Scott Wallace, R.G., both of Kleinfelder West, Inc. dated January 4, 2008. The Memorandum is attached hereto as Exhibit "3" and incorporated herein by reference.' The Memorandum concluded as follows: 5 — Final Decision 6829-076301v2.doc "Based on our analysis and that of Apollo Geophysics Corporation, the proposed blasting plan scenario and the proposed operations for Spencer Well Pit, damaging vibrations generated from blasting is unlikely to impact structures on the Walker Property, Coyote Well, Pictographs, Best Shelter and the Evans Well Ranch. Vibrations, reported as peak particle velocity (PPV) at full build out are expected to be less than 0.2 inches per second at the Coyote Well. Similarly, vibration displacement of rock as a result of blasting vibrations is expected to be less than 0.005 inches at the Coyote Well. Ground vibrations are expected to be within safe limits established by the Office of Surface Mining (Siskind, et al., 1980). Monitoring points at key areas around the perimeter of the mine site are recommended to monitor vibrations during blasting operations." Based upon the Technical Memorandum prepared by Kleinfelder West, Inc. the Board concludes that vibrations from blasting should not impact the Coyote Wells structure. However, monitoring points at key areas around the perimeter of the mine site will be required to monitor vibrations during blasting operations to be sure that ground vibrations are within the safe limits established by the Office of Surface Mining. A representative of the Applicant, Ron Robinson Jr., testified that the core drillings made to determine the quantity and quality of the material were important to him in that if groundwater had been present, special precautions would have to be taken. There was no evidence of ground water in all of the core drillings that were done on the site. Kleinfelder has confirmed that there is no evidence of any hydrological connection between the Applicant's site and the Coyote Well. The Applicant does have a groundwater permit for the operation. However, that groundwater permit will be from the aquifer within the Millican Valley and not from any perched water tables that may or may not be present in the area. The Applicant's expert, geologist Ralph Christianson, essentially confirmed the conclusions of Kleinfelder with respect to any hydrological connection between the subject a property and the Coyote Well. 5. Best Shelter. The County did identify dust, noise, traffic and vibrations as potential conflicts around the Best Shelter. This is a structure located on private property approximately 1,775 feet from the subject property. Petitioners argue that the County failed to evaluate those potential impacts and either mitigate the impacts or address them under the ESEE Analysis. They concluded that the Intervenor did not cite any findings that addressed conflicts with the shelter or explain why such conflicts need not be addressed. There is a structure that has been identified as the "Best Shelter" located on private property approximately 1,775 feet from the subject property. It would not be accurate to identify this as a "historic structure". A photograph of the structure is attached hereto as Exhibit "4" and incorporated herein by reference. There is some evidence of human occupancy, but that seems to occur on a very sporadic basis. The structure itself was constructed without the issuance of any building permits. It is not occupied full-time. The Applicant and its representatives have never seen anyone at the shelter itself. Based upon the location of the shelter, the impact of increased traffic on Spencer Welis Road would be of no greater impact than the existing traffic on U.S. Highway 20. Based upon the evaluation done by Kleinfelder West, Inc. to identify potential blasting vibrations, the Board has no reason to believe that vibrations would be an issue for the existing structure. Vibrations generated from the subject property would be no greater than 6 — Final Decision 6829-076 301v2.doc noise already generated by U.S. Highway 20. There is no evidence of any agricultural use on the property upon which the Best Shelter is located. Based upon the Technical Memorandum dated January 4, 2008 from Kleinfelder West, Inc., the vibrations from blasting operations should not be a conflict with the Best Shelter. This even takes into account the increase of traffic on Spencer Wells Road from the mine itself. Finally, there is no evidence that there will be any more dust generated from the subject property than is already generated from the operation of off road vehicles in the Millican Valley. The Board concludes no mitigation of these potential conflicts is required. 6. Whether the Mining Pit Itself will Dewater Nearby Shallow Perched Aquifers. The Board finds that the mining activities will not dewater or impact shallow aquifers. Petitioners made an argument that the mining pit itself could dewater nearby shallow perched aquifers LUBA agreed that the County did not evaluate the concern of whether the mining pits itself might impact shallow perched aquifers. In response to this assignment of error, Applicant contracted with Kleinfelder West, Inc. A Memorandum was prepared January 14, 2008 by William Gates, Ph.D., P.E., C.E.G. and R. Scott Wallace, R.G. Said Memorandum is attached hereto as Exhibit "5" and incorporated herein by reference. They conducted a hydrogeologic review of the northwestern portion of the Millican Basin and the proposed Spencer Wells Pit/Quarry area. They concluded as follows: "Based on our hydrogeologic evaluation, the proposed Spencer Wells Pit appears unlikely to adversely impact water quality or water levels within shallow, perched aquifers and hydrogeologic continuity with Coyote Well or the intermittent drainage (dry river) which serves an outlet for surface water run off within the Millican Valley." Based upon the additional evidence prepared by Kleinfelder West, Inc., the County concludes that the Spencer Wells Pit would not adversely impact water quality or water levels within shallow perched aquifers and hydrogeologic continuity with Coyote Well or the intermittent drainage (dry river) that serves an outlet for surface water run off within the Millican Valley. 7. impact of Blasting Generated Dust on Walker Residence. Considering the source of dust from limited blasting events and the evidence from the Applicant that there are reasonable and practical measures, the Board finds no need to limit or prohibit mining activities. The Petitioners argued that the County's decision did not evaluate dust from blasting, that blasting generates significant amounts of dust, and that water cannot be used to control dust from blasting, and that the comparison sites the County referred to in its Decision did not involve excavation and blasting. LUBA concluded as follows: "It may be, as Petitioners suggest, that there are no reasonable and practicable measures to minimize or reduce adverse impacts on the Walker residence caused by blasting generated dust, in which case the ESEE Analysis must consider those impacts in weighing whether to allow, limit, or prohibit mining. However, the County's ESEE findings on this point apparently did not consider or evaluate that source of dust." First, Kleinfelder West, Inc. concluded in its analysis of vibrations from blasting operations at the proposed Spencer Wells Pit dated January 4, 2008,.thatfly rock (rock ejected from the blast site), was not anticipated based upon the typical blasting design and drilling 7 — Final Decision 6829-076 301v2.doc patterns to be utilized by the Applicant. Secondly, blasting does not occur very often. The County agrees with the Applicant that there are reasonable and practical measures to minimize or reduce adverse impacts from dust. One way to minimize or even eliminate blasting generated dust on the Walker residence is to conduct blasting when the wind directions are blowing away from the residence. The Applicant has testified that blasting activities generally occur during the winter months when there is manpower availability in the construction business. The Applicant therefore contracted with Kleinfelder West, Inc. to monitor and record wind speed and direction for the proposed site. Anemometer data was downloaded on a monthly basis beginning November 19, 2007 through December 26, 2007. The results of these preliminary studies indicated that 62.6% of the time the wind was blowing from a westerly direction to the east. See Exhibit "6". 37% of the time the wind was blowing from the east to the west. In both instances, the wind would be blowing away from the Walker residence, Additionally, the Applicant does have a groundwater permit for the operation of this particular project. Groundwater will be used to control dust. The road will be asphalt. The actual quarry site will be watered to contain any dust. The only possible dust that will be generated will be from the blasting used to break up the rock for mining purposes. This will occur, at most, a half of a dozen times a year. Blasting is a single event, lasting just a few second. The Applicant has demonstrated on similar sites east of Alfalfa, as well as, O'Neil Junction that these activities can occur without creating any problems due to dust. Finally, Applicant has designed significant buffers all around the actual mining site itself. The operation of the site is overseen by OSHA, DEQ and MSHA to monitor the health and safety of the employees on site. Blasting activities can occur without adverse impacts to the neighboring property or even to the workers on site. Furthermore, no state or federal agency has expressed any concerns with the project based upon the mitigation measures that have been proposed by the Applicant. The Millican Valley has already been impacted significantly by other dust -creating activities, i.e. off-road vehicles that utilize the surrounding properties. Except for the hard rock pit off. of •Skyliners Road, west of Bend, this would be the only other significant hard rock quarry in Deschutes County. All of the rock is currently being exported from Crook County. Before this application was even filed, the Applicant had engaged the services of a number of professionals, including archeologists, geologists, and hydrologists in order to confirm that the site could be operated so as to have minimal adverse impacts on any surrounding land owners. The Board approves the zone change given the extensive efforts to minimize the impacts of dust and limited impact of blasting -generated dust. 8. Conflicts with Agricultural Uses. The Board concludes there are no conflicts with agricultural uses given the distance of any grazing from the proposed blasting activities. OAR 660-023-018(5)(b)(E) requires the County to consider "conflicts with agricultural uses". OAR 660-023-0180(5)(c) provides that minimizing identified conflicts with agricultural practices means conforming to the requirements of ORS 215.296. This would require findings on whether the proposed use would force a significant change in or significantly increase the cost of agricultural practices on nearby lands. LUBA found that the rule is not concerned with the relative significance of the agricultural use. The County's decision must address ORS 215.296 to determine whether there are proposed measures to minimize conflicts to agricultural 8 — Final Decision 6829-076 301v2.doc practices under this statute. The impact area has been identified as an area within one-half mile of the property line of the subject property. There is no evidence of any dry land grazing or other agricultural uses on any property lying north of U.S. Highway 20 within one-half mile of the subject property. There is no evidence of any dry land grazing or other agricultural uses within one-half mile of the subject property to the east or south of the property. The surrounding property is all undisturbed sagebrush with the exception of off road vehicle recreational uses. The property that lies within one-half mile to the west of the subject property that is in private ownership. It also has no evidence of dry land grazing or other agricultural uses. There is an adjacent 40 -acre parcel to the west and additional properties administered by the BLM lying south and west of the subject property, that are part of the Evans Wells Ranch (Nash) BLM Grazing Allotment. The Evans Wells Ranch Grazing Allotment on BLM lands consists of 22,285 acres. The allotment all lies west of Spencer Wells Road andsouth of U.S. Highway 20. A copy of the location of the grazing allotment has been attached hereto and incorporated herein by reference. The BLM assigns a time of year and length of time for each pasture within the grazing allotment. Of that portion of the grazing allotment that lies within the impact area, that portion of the grazing allotment amounts to only one percent (1 %) of the total 22,285 -acre grazing allotment for the Evans Wells Ranch. The grazing allotment is separated from the subject property by Spencer Wells Road. The subject property will be fenced, along the western boundary, which will keep livestock from entering the subject property itself from the adjacent grazing allotment. There will also be a 200 -foot buffer that will be provided throughout the life of the project There is no evidence of any sources of water on the grazing allotment within the buffer area. Therefore, within the impact area, there is only evidence of a portion of a BLM grazing allotment. The allotment is only used for the dry land grazing of cattle. The proposed use will not force a significant change in accepted farm practices or significantly impact or increase the cost of accepted farm practices in the area. 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. 9. ESEEAnalysis. The Board adds three conditions to the zone change approval: 1. Based upon the Technical Memorandum prepared by William C.B. Gates, Ph.D., P.E., C.E.G. of Kleinfelder West, Inc. dated January 4, 2008, which is attached hereto as Exhibit "3", Petitioners 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, 9 — Final Decision 6829-076 301v2.doc 1 2. Based upon the anemometer data collected by Kleinfelder, blasting will occur when the prevailing wind is blowing away from the Walker residence. 3. 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. IV. CONCLUSION: The Board hereby approves the plan amendment and zone change in File No. PA -04-8 and ZC-04-6, subject to the conditions of operation set forth above. DATED this Dated this (IS of OCt , 2008 ATTEST: 47-20-1,6t* Recording Secretary 10 — Final Decision - PA -04-8, ZC-04-6 , 2008. BOARD OF COUNTY COMMISSIONERS ) IS R. LUKE, CHAIR 1111TAM M C Al AEL T. D LY, •MMISSIONER 1 BEFORE THE LAND USE BOARD OF APPEALS 2 3 4 5 6 7 OF THE STATE OF OREGON TAMMERA WALKER and CLAY WALKER, Petitioners, VS. 8 9 DESCHUTES COUNTY, 10 Respondent, 11 12 and 13 14 4-R EQUIPMENT, LLC, 15 Intervenor -Respondent. 16 17 LUBA No. 2008-189 18 19 FINAL OPINION 20 AND ORDER 21 22 Appeal from Deschutes County. 23 24 Zack P. Mittge, Eugene, filed the petition for review and argued on behalf of 25 petitioners. With him on the brief was Hutchinson, Cox, Coons, DuPriest, Orr & Sherlock, 26 P.C. 27 28 No appearance by Deschutes County. 29 30 Robert S. Lovlien, Bend, filed the response brief and argued on behalf of intervenor - 31 respondent. With him on the brief was Bryant, Lovlien & Jarvis, P.C. 32 33 BASSHAM, Board Chair; HOLSTUN, Board Member; RYAN, Board Member, 34 participated in the decision. 35 36 , REMANDED 09/22/2009 37 38 You are entitled to judicial review of this Order. Judicial review is governed by the 39 provisions of ORS 197.850. 2009 Page 1 Opinion by Bassham. 2 NATURE OF THE DECISION 3 Petitioners appeal a county decision approving a comprehensive plan amendment and 4 zone change to allow surface mining. 5 MOTION TO INTERVENE 6 4-R Equipment, LLC (intervenor), the applicant below, moves to intervene on the side 7 of respondent. There is no opposition to the motion, and it is allowed. 8 FACTS 9 This case is before us for a second time. We stated the facts in our first opinion: 10 "The subject property is located on Highway 20 in Millican Valley, 11 approximately 25 miles southeast of the City of Bend. The 385 -acre parcel is 12 zoned Exclusive Farm Use, and is subject to Antelope Winter Range Wildlife 13 Area (WA) and Landscape Management (LM) overlay zones. Highway 20 14 bisects the northern portion of the parcel. A portion of the Dry River Canyon 15 is located on the property parallel to the highway. Uses on adjacent and 16 nearby properties include cattle ranching, wildlife habitat, the Pine Mountain 17 Observatory, an off-road vehicle recreation site, native American 18 archeological and cultural sites, and several dwellings. 19 "Intervenor applied to the county for a plan amendment to include the subject 20 property in the county's inventory of mineral and aggregate sites, and to 21 rezone the property to Surface Mining (SM), to facilitate proposed mining and 22 crushing of basalt rock. The county hearings officer conducted a public 23 hearing, and issued a decision recommending that the proposed plan 24 amendment and zone change be denied for failure to identify measures to 25 avoid or minimize conflicts with adjoining and nearby uses, based in part on 26 alleged impacts on uses in the area that are located up to six and one-half 27 miles away from the subject property. The county board of commissioners 28 approved the application and proposed mining, concluding that the relevant 29 impact area should extend no further than one-half mile from the property. In 30 addition, the commissioners imposed a Surface Mining Impact Area (SMIA) 31 overlay zone on all properties within one-half mile of the boundary of the 32 subject property. The -SMIA overlay zone imposes standards on the use of 33 nearby properties to reduce conflicts with the proposed surface mining 34 operation." Walker v. Deschutes County, 55 Or LUBA 93, 96 (2007) 35 Petitioners appealed the commissioners' decision to LUBA. We remanded, 36 sustaining all or part of five assignments of error. In relevant part, we remanded for the Page 2 1 county to adopt additional findings with respect to (1) whether to expand the "impact area" to 2 include a protected sage grouse site and nearby grazing lands, (2) conflicts with grazing uses, 3 Native American religious and cultural visits, and a nearby residence. 4 On remand, the county held a public hearing and again approved the requested plan 5 and zoning amendments, adopting additional findings of fact and adding three conditions of 6 approval. This appeal followed. 7 FIRST AND FOURTH ASSIGNMENTS OF ERROR 8 OAR 660-023-0180(5) sets out the procedures and standards for determining whether 9 to allow mining of a significant mineral resource. Generally, the county must first determine 10 the size of the "impact area" to be studied, limited to 1500 feet from the mining area, unless 11 "factual information indicates significant potential conflicts beyond this distance[.]" t In the 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. For a proposed expansion of an existing aggregate site, the impact area shall be measured from the perimeter of the proposed expansion area rather than the boundaries of the existing aggregate site and shall not include the existing aggregate site. "(b) The local government shall determine existing or approved land uses within the impact area that will be adversely affected by proposed mining operations and shall specify the predicted conflicts. For purposes of this section, `approved land uses' are dwellings allowed by a residential zone on existing platted lots and other uses for which conditional or final approvals have been granted by the local government. For determination of conflicts from proposed mining of a significant aggregate site, the local government shall limit its consideration to the following: "(A) Conflicts due to noise, dust, or other discharges with regard to those existing and approved uses and associated activities (e.g., houses and schools) that are sensitive to such discharges; Page 3 1 present case, the county chose an impact area of one-half mile from the property boundary of 2 the tract that includes the mining site, instead of the 1,500 -foot impact area required by 3 OAR 660-023-0180(5)(a), because the half -mile distance corresponded to the SMIA overlay 4 zone. Under OAR 660-023-0180(5)(b), once the county selects the impact area to be studied, 5 the county then determines whether certain existing or approved land uses within the impact 6 area will be adversely affected by proposed mining operations, including conflicts with 7 residential uses, agricultural practices, and acknowledged Goal 5 resource sites. 8 In Walker, LUBA remanded the county's initial decision for the county to consider 9 whether to expand the impact area beyond one-half mile to include nearby grazing lands that 10 are part of the Evans Well Ranch, in response to testimony from the ranchers that blasting 11 and other impacts of the proposed mine could adversely affect their grazing operation. On 12 remand, the county declined to expand the impact area, concluding that the record did not 13 include factual information indicating that the mine could cause a significant potential 14 conflict with grazing on the portion of the Evens Well Ranch closest to the mine, a 40 -acre 15 allotment adjacent to the subject property.2 Based on similar findings, the county ultimately "(D) Conflicts with other Goal 5 resource sites within the impact area that are shown on an acknowledged list of significant resources and for which the requirements of Goal 5 have been completed at the time the PAPA is initiated; "(E) Conflicts with agricultural practices[.]" 2 The county's findings regarding OAR 660-023-0180(5)(a) state, in relevant part: "One 40 -acre portion of the [Evens Well Ranch] 22,285 -acre grazing allotment does abut the southwest corner of the proposed mining site. The proposed mining site will be fenced, prohibiting grazing cattle from entering the site itself. The abutting 40 -acre portion of the grazing allotment amounts to only less than one percent (1%) of the total grazing allotment for Evens Wells Ranch. More than 22,245 acres of the grazing allotment lie outside of the impact are& "Both site visits and aerial photographs confirm that there are no irrigated pastures within three (3) miles of the subject property. Private property borders three sides of the 40 -acre parcel of grazing pasture. The [county] relies on evidence from the Applicant, who operates a similar mining site east of Alfalfa. That property is surrounded by a BLM [Bureau of Land Management] grazing allotment[, the owner of which] has a key to the Alfalfa mining site, Page 4 1 concluded for purposes of OAR 660-023-0180(5)(b)(E) that mining would not conflict with 2 agricultural practices within the impact area.3 3 Under the first assignment of error, petitioners argue that the county erred in failing to 4 expand the impact area to include other portions of the Evans Well Ranch. Under the fourth 5 assignment of error, petitioners challenge the county's findings with respect to conflicts with 6 agricultural uses within the one-half mile impact area. Because the issues raised under these 7 assignments of error overlap, we discuss them together. 8 With respect to the size of the impact area, petitioners argue that the county 9 misconstrued the applicable law, by evaluating only the 40 -acre grazing allotment that is 10 immediately adjacent to the subject property, rather than evidence regarding impacts on other 11 nearby grazing lands. Petitioners contend that the findings are inadequate, because they do allowing his cattle to use the water impound, if necessary. He also uses the scale to weigh hay that he hauls from his ranch. "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 [county] concludes that the proposed mining would not result in a `significant potential conflict' with respect to the Evans Wells Ranch grazing allotment and the operation of the ranch." Record 6. 3 The county's findings under OAR 660-023-0180(5)(b)(E) state, in relevant part: "There is an adjacent 40 -acre parcel to the west and additional properties administered by the BLM lying south and west of the subject property, that are part of the Evans Wells Ranch (Nash) BLM Grazing Allotment. The Evans Wells Ranch Grazing Allotment on BLM lands consists of 22,285 acres. The allotment all lies west of Spencer Wells Road and south of U.S. Highway 20. * * * The BLM assigns a time of year and length of time for each pasture within the grazing allotment. Of that portion of the grazing allotment that lies within the impact area, that portion of the grazing allotment amounts to only one percent (1%) of the total 22,285 -acre grazing allotment for the Evans Wells Ranch. "The grazing allotment is separated from the subject property by Spencer Wells Road. The subject property will be fenced, along the western boundary, which will keep livestock from entering the subject property itself from the adjacent grazing allotment. There will also be a 200 -foot buffer that will be provided throughout the life of the project. There is no evidence of any sources of water on the grazing allotment within the buffer area. "Therefore, within the impact area, there is only evidence of a portion of a BLM grazing allotment. The allotment is only used for the dry land grazing of cattle. The proposed use will not force a significant change in accepted farm practices or significantly impact or increase the cost of accepted farm practices in the area." Record 11. Page 5 1 not address testimony by the Nashes, the owners of the Evans Well Ranch, regarding impacts 2 on other nearby grazing allotments, some of which are within the half -mile impact area and 3 some that are outside. According to petitioners, on remand the Nashes submitted additional 4 testimony detailing specific impacts of the proposed mine on their grazing operation, 5 including impacts on a nearby grazing allotment known as "Flat Pasture" that has access to 6 an important water source that does not freeze in the winter. Supplemental Record 676. The 7 Nashes explained that BLM recently reduced their use of Flat Pasture to provide additional 8 winter habitat for sage grouse, and argues that the impact of mine blasting on nearby sage 9 grouse populations may cause BLM to further reduce or eliminate grazing of Flat Pasture. In 10 addition, the Nashes identified $7,000 in recent financial losses due to cattle frightened away 11 from water sources by the noise of hunters firing shotguns, and argued that the noise of mine 12 blasting could have similar effects. Id. Petitioners argue that the Nashes' testimony is 13 "factual information" indicating "significant potential conflicts" that the county's findings do 14 not address at all, either in justifying the half -mile impact area for purposes of OAR 660-023- 15 0180(5)(a), or in addressing conflicts with identified agricultural uses within the impact area, 16 under OAR 660-023-0180(5)(b)(E). 17 Intervenor responds that the county's decision not to expand the one-half mile impact 18 area to include other portions of the Evans Wells Ranch, and the ultimate determination that 19 the mine would not conflict with grazing on the 40 -acre allotment adjacent to the mine, are 20 supported by substantial evidence. With respect to the size of the impact area, intervenor 21 argues that the county reasonably relied on the size of the 22,285 -acre Evans Wells Ranch, 22 the buffers between the mine site and the nearest grazing allotment, and evidence of lack of 23 conflicts between a different mining site and surrounding grazing lands to conclude that 24 proposed mining will not result in a "significant potential conflict" with respect to the Evans 25 Wells Ranch. Page 6 1 With respect to the question of conflicts with agricultural uses within the impact area 2 under OAR 660-023-0180(5)(b)(E), intervenor argues that the county reasonably relied on 3 the fact that 40 -acre allotment is separated from the subject property by a road and fencing 4 and that the mining site will be surrounded by a 200 -foot buffer area, to conclude that mining 5 operations will not conflict with grazing on the 40 -acre allotment. 6 Petitioners are correct that the county's findings with respect to the size of the impact 7 area and conflicts with agricultural uses within the one-half mile impact area appear to be 8 based on the understanding that the only Evans Wells Ranch grazing allotment located in the 9 vicinity of the mining site is the adjacent 40 -acre parcel. TheAtiitnty ap$. titlyfailed to 10 appreciate that other Evans Wells Ranch grazing allotments are located nearby, some within 11 the one-half mile ° SMJA overlay zone and some outside the zone. For purposes of 12 determining the size of the impact area under OAR 660-023-0180(5)(a), and whether "factual 13 information indicates significant potential conflicts beyond" the initial 1,500 -foot impact area 14 provided under the administrative rule, the county must sometimes evaluate evidence 15 regarding land that is located outside that initial 1,500 -foot impact area, and potentially some 16 distance from the mining site. The county's failure to appreciate that there are Evans Wells —1 17 Ranch grazing allotments in the vicinity other than the adjacent 40 -acre allotment, such as the 18 Flat Pasture area with its water source, means that the county's determination regarding the 19 size of the impact area is flawed. Ussaty'for the county to consider all relevant. 20 eyidgrice regarding all Evans Wells Ranch grazing - allotments that are in' the vicinity and 21 c t .ntially affect ¢ , Ixe; $ q d apOing nperatign, . Male i tligi` ia`a€ 22 �'`ti' ant) 23 g t ` ;1110se°nli 4 . 24 Even if it is presumed that the one-half mile impact area chosen by the county is 25 justified for purposes of OAR 660-023-0180(5)(a), remand is necessary in any case, because 26 the county's findings regarding conflicts with agricultural uses under OAR 660-023- attort: `incllcats .signiTeant potential corilicts" wtt' Page 7 1 0180(5)(b)(E) ' �?=;y; s ii `' aka ori the`inrsapprehension'that the only' grazing within 2 tli "impact .rea:.6 tars ori the adjacernt 40 -acre parcel. The Nashes testified, and intervenor 3 does not dispute, that other Evans Wells Ranch grazing allotments are located within the one - 4 half mile SMIA overlay zone. FM'' :e county's findings under OAR 660.023- 5 }` fl o dress•the :Nas1iestestimony regarding noise impacts on their cattle 6 '^atioprjnd.eecl noiwimpacts,p.cattle at all. The findings cite fencing and a 200 -foot 7 buffer area as the principal bases for concluding that the mine operation will not conflict with 8 agricultural practices, that is, will not force a significant change in accepted farming practices 9 or significantly increase the cost of accepted farming practices. HemoomoortI - 10 submitte sped is r �tnoeiy regardirig nose impacts on their grazing operation, and the 11 146fifiYVfiiidiAti "tieft'h " r dress khat -testirriony nor :demonstrate` that fenciri d is 200 -foot l 12 le? ,;area :tareguffierent'"to ensure that the mining operation will not conflict with 13 agricultural practices, for purposes of OAR 660-023-0180(5)(e). 14 The first and fourth assignments of error are sustained. 15 SECOND ASSIGNMENT OF ERROR 16 Petitioners argue that the county erred in failing to expand the impact area to include 17 sage grouse habitat in the area, including a sage grouse lek (strutting ground) located over a 18 mile to the west of the mining site that is an identified Goal 5 resource site in the county's 19 comprehensive plan. Under the county's Goal 5 protection scheme, the lek site is protected 20 by a sensitive bird and mammal (SBM) combining zone extending 1,320 feet from the lek 21 site. In the county's initial decision, the county relied on the fact that the lek site is more than 22 1,320 feet from the mining site to conclude that mining would not cause a "significant 23 potential conflict" with the lek, and thus declined to expand the impact area to include the 24 site. 25 In Walker, LUBA remanded the initial decision in part because in determining the 26 size of the impact area the county failed to address evidence, a BLM map, that appears to Page 8 1 show that the subject property is in the middle of several flight paths to and from nest sites 2 and the identified lek site. Based on that map, opponents argued that blasting and mining 3 operations might disturb those flights and thus disturb use of the lek. On remand, intervenor 4 submitted testimony from a wildlife biologist concluding that the map is not intended to 5 indicate that sage grouse fly directly over the mining site, and that grouse may actually have 6 moved between nest sites and the lek site by indirect flight paths. Record 572. The biologist 7 also stated that in conversations with BLM and the Oregon Department of Fish & Wildlife 8 (ODFW) staff, both agencies told him that they had no concerns with conflicts between sage 9 grouse leks and the proposed mining. Based in part on that testimony, the county again 10 concluded that there is no factual information indicating that the mine could cause a 11 significant potential conflict with the lek site or sage grouse habitat in general, and declined 12 to expand the impact area beyond one-half mile.4 Under this assignment of error, petitioners 13 challenge those findings. 4 The county's findings state, in relevant part: "[Intervenor's wildlife biologist] analyzed a map, `Figure 12. Sage Grouse Movement Patterns Identified Through Radio -Marked Bird Locations, Prineville District, BLM, 1991 to 1993,' showing sage grouse movement patterns based on radio -marked bird locations from 1991 to 1993. He concludes that it would be erroneous to deduce that a bird flew directly through the planned rock pit area. The map only indicates that a sage grouse was located both at the lek and at Broadman Rim. The bird may have actually taken a different flight path or moved between two locations via a combination of flights. The schematic map was meant to show well known grouse behavior when female sage grouse move between nest areas and leks during the nesting season, and not to indicate flight paths or patterns. "[The biologist] also references the consultation with the [BLM] and [ODFW] before the Application was submitted to Deschutes County and indicates they had no concerns about sage grouse. "The sensitive habitat area is site-specific for each sensitive bird or mammal location. The sensitive area to be protected for the sage grouse lek is a radius of 1,320 feet. Here, the proposed zone change is not within 1,320 feet from any lek. Page 9 1 Initially, we observe that under OAR 660-023-0180(5)(a) and (b) the relevant 2 question is whether the impact area should be expanded to consider conflicts with Goal 5 3 resources "shown on an acknowledged list of significant resources[]." OAR 660-023- 4 0180(5)(b)(D). See n 1. The lek site is identified on the county's list of significant Goal 5 5 resources, but other sage grouse habitat sites such as nesting sites are apparently not so 6 identified. Therefore, impacts on sage grouse habitat in general are not in themselves 7 relevant for purposes of determining the impact area under OAR 660-023-0180(5)(a) and 8 evaluating conflicts with identified Goal 5 resources under OAR 660-023-0180(5)(b)(E). At 9 best, such conflicts are relevant only to the extent they impact use of the lek site. 10 The impact identified in LUBA's remand and that forms the main focus of the 11 testimony on remand is whether the mining operation will disturb flights to and from the lek 12 site. On that point there is conflicting testimony in the record. Petitioners cite to testimony 13 from an ornithologist that the disputed map indeed shows that grouse make direct flights to 14 and from nesting sites to the lek site that pass over or near the mining site. Supplemental 15 Record 775. The county relied on testimony from intervenor's wildlife biologist concluding 16 that the map is not intended to show flight paths and does not necessarily indicate that grouse 17 fly over or near the subject property. The county ultimately found that there is no evidence of 18 significant potential conflicts with the lek site. "Applicant performed a survey of habitat in the rock pit area and did not discover any additional strut sties or evidence of nesting sites. The County has not received any additional comments from BLM or ODFW. "The SBM Habitat Combining Zone is designed to protect known sensitive bird sites, including sage grouse leks. "The County Commissioners concur with the conclusions of [the biologist] with regard to the issues raised regarding sage grouse habitat. There is no evidence that sage grouse habitat will be impacted. "ODFW has submitted comments and has acknowledged that the mitigation proposed by the Applicant will be sufficient to address their concerns. BLM has had repeated opportunities to comment and has decided not to make any further comments." Record 4-5. Page 10 1 While it is close question, we agree with intervenor that a reasonable decision maker 2 could conclude that the record does not include factual information indicating "significant 3 potential conflicts" with respect to disrupting sage grouse flights to and from the lek site 4 during the breeding season. The record includes little evidence at all on that point, and the 5 significance of the most salient evidence, the map at Record 574, is subject to conflicting 6 expert opinion. The local government is generally entitled to choose between conflicting 7 expert testimony, if a reasonable person could rely on the chosen testimony. Caldwell v. 8 Union County, 48 Or LUBA 500, 516-17 (2005). We cannot say that the county erred in 9 concluding that the record does not support expanding the one-half mile impact area to 10 include the lek site. 11 The second assignment of error is denied. 12 THIRD ASSIGNMENT OF ERROR 13 One basis for remand in Walker was for the county to consider whether Native 14 American religious and cultural visits to pictograms and native burial sites in the vicinity are 15 "existing uses" for purposes of OAR 660-023-0180(5)(b)(A) and if so, to evaluate alleged 16 conflicts with those uses.5 On remand, the county found no evidence that religious and 17 cultural visits occurred on a "regular basis," and concluded therefore that such visits were not 18 "existing uses" for purposes of OAR 660-023-0180(5)(b)(A).6 Apparently in the alternative, 5 OAR 660-023-0180(5)(b)(A) requires the county to consider "[c]onflicts 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[.]" See n 1. 6 The county's findings state, in relevant part: "The pictograms themselves are located within 500 feet of U.S. Highway 20, which is an east/west highway across the State of Oregon. The pictograms are located north of U.S. Highway 20 across the highway from the proposed mining site. Furthermore, the pictograms are 3,044 feet from the nearest point that mining would occur on the subject property. "No evidence was presented that tribal members have been visiting the pictograms on a regular basis for religious and cultural purposes. However, there was evidence in the record of some religious and cultural activities. The Applicant has offered to restrict any blasting activities when it is notified that there would be a cultural or religious activity scheduled on Page 11 1 the county concluded that mining activities, specifically blasting noise, would not conflict 2 with any religious or cultural visits, because intervenor agreed to a condition of approval 3 restricting blasting activities for up to three days after being notified of a scheduled religious 4 or cultural visit to the pictogram site. 5 Petitioners challenge those findings, arguing that the county erred in concluding that 6 religious and cultural visits are not "existing uses" simply because they do not occur on a 7 regular basis. Petitioners also challenge the finding that blasting activities at the mining site 8 will not generate any more noise or disturbance than already exist at the pictogram site due to 9 the presence of Highway 20, as not being supported by the record. Finally, petitioners object 10 that the condition of approval restricting blasting activities for up to three days when the 11 applicant is notified of scheduled religious or cultural visits is insufficient. 12 We agree with petitioners that the county identifies no basis under OAR 660-023- 13 0180(5) to conclude that a use is not an "existing use" because it does not occur on a "regular 14 basis." r: t .-error is harmless,. if the county's alternative finding that, as 15 l 'p 1sii_ h 9 i nocon flict-between rninzrig'and religious and cultural- activities near the 16 pictograms are sustained. Presumably, that finding reflects OAR 660-023-0180(5)(c), which Iftestuair.k, 17 requires the county to "determine reasonable and practicable measures that would minimize 18 conflicts" identified under OAR 660-023-0180(5)(b). the Walker property. Applicant has agreed to a condition of approval accordingly. Since the Applicant has consented to such a condition of approval, there would be no impact on these activities. "The Board does not find that such visits are therefore `existing uses' for purposes of OAR 660-023-0180(5)(b)(A). Furthermore, the activities that would occur on the proposed surface mining site will not generate any more noise or disturbance than already exist with the presence of U.S. Highway 20. "Since there is no evidence of any regular, ongoing religious or cultural activities on the Walker property, and since the Applicant has agreed that upon prior notice, it would restrict any blasting activities on the property during any such religious or cultural activities, the [county] concludes the zone change will not have an impact on any cultural or religious activities that might occur on the Walker property." Record 6-7. Page 12 1 The county imposed a condition requiring the applicant to "restrict its blasting 2 activities, upon prior written notification, of any cultural or religious activities that will occur 3 on the Walker property. Any such restrictions, however, shall not exceed three (3) days in 4 duration." Record 12. Based on that condition, the county found that the mining would not 5 conflict with religious and cultural use of the pictogram site. Petitioners' only challenge to 6 that finding and condition is to argue that the condition is limited to blasting, and does not 7 address other sources of noise. However, petitioners cite to no evidence that any source of 8 noise other than blasting is a significant issue with respect to visits to the pictogram site, 9 which is located over half a mile from the mining site, across a major highway. Absent a 10 more developed argument, petitioners have not demonstrated that the county erred in 11 concluding that, as conditioned, the proposed mining will not conflict with existing use of the 12 pictogram site. 13 The third assignment of error is denied. 14 FIFTH ASSIGNMENT OF ERROR 15 Once the county has identified an impact area, identified significant conflicts with 16 certain uses within the impact area, and determined whether those conflicts can be 17 minimized, under OAR 660-023-0180(5)(d) the county must determine based on any 18 significant conflicts that cannot be minimized the economic, social, environmental and 19 energy (ESEE) consequences of either allowing, limiting, or not allowing mining of the site.' OAR 660-023-0180(5)(d) provides: "The local government shall determine any significant conflicts identified under the requirements of subsection (c) of this section that cannot be minimized. Based on these conflicts only, local government shall determine the ESEE consequences of either allowing, limiting, or not allowing mining at the site. Local governments shall reach this decision by weighing these ESEE consequences, with consideration of the following: "(A) The degree of adverse effect on existing land uses within the impact area; "(B) Reasonable and practicable measures that could be taken to reduce the identified adverse effects; and Page 13 1 In Walker, one basis for remand was for the county to consider the ESEE 2 consequences of allowing mining, with respect to the impact of blasting -generated dust on 3 the Walker residence, which is located north of the mining site more than one-half mile away. 4 On remand, intervenor submitted wind data collected between November 19, 2007 and 5 December 27, 2007, which showed that during that period the wind rarely blew from the 6 mining site toward the Walker residence. In response, petitioners submitted evidence that 7 during the same period the prevailing winds blew from the mining site toward the Walker 8 residence approximately 58 percent of the time. The county found: 9 "The County agrees with the Applicant that there are reasonable and 10 practicable measures to minimize or reduce adverse impacts from dust. One 11 way to minimize or even eliminate blasting -generated dust on the Walker 12 residence is to conduct blasting when the wind directions are blowing away 13 from the residence. The Applicant has testified that blasting activities 14 generally occur during the winter months when there is manpower availability 15 in the construction business. The Applicant therefore contracted with 16 Kleinfelder West, Inc. to monitor and record wind speed and direction for the 17 proposed site. Anemometer data was downloaded on a monthly basis 18 beginning November 19, 2007 through December 26, 2007. The results of 19 these preliminary studies indicated that 62.6% of the time the wind was 20 blowing from a westerly direction to the east. * * * [Thirty-seven percent] of 21 the time the wind was blowing from the east to the west. In both instances, 22 the wind would be blowing away from the Walker residence." Record 10. 23 The county also found that blasting will occur, at most, six times per year, and that blasting is 24 a single event, lasting a few seconds. Id. Based on those findings, the county imposed a 25 condition providing: 26 "Based upon the anemometer data collected by Kleinfelder, blasting will occur 27 when the prevailing wind is blowing away from the Walker residence." 28 Record 12. 29 Petitioners first argue that the county failed to determine "[t]he degree of adverse 30 effect on existing land uses within the impact area" with respect to dust impacts on the "(C) The probable duration of the mining operation and the proposed post -mining use of the site." Page 14 1 Walker residence, as required by OAR 660-023-0180(5)(d)(A), but instead considered only 2 whether "[r}easonable and practicable measures that could be taken to reduce the identified 3 adverse effects," under OAR 660-023-0180(5)(d)(B). Petitioners argue that the county put 4 the cart before the horse, and considered measures to reduce identified adverse impacts 5 without first determining the degree of adverse impacts. 6 While petitioners are correct that the county's remand findings did not first deteiniine 7 the degree of adverse effect on the Walker residence from blasting -generated dust, petitioners 8 have not explained what purpose would be served by remanding the decision for the county 9 to make that initial determination, when the county has identified measures that the county 10 found would "minimize or even eliminate [the impacts of] blasting -generated dust on the 11 Walker residence[.]" Record 10. That finding, if accurate, would seem to demonstrate that 12 there are "reasonable and practicable measures that would minimize" the identified conflict 13 under OAR 660-023-0180(5)(c), in which case the county would not need to conduct an 14 ESEE analysis at all under OAR 660-023-0180(5)(d) with respect to blasting -generated dust. 15 The ESEE analysis under OAR 660-023-0180(5)(d) iiillaliNrgriMiriresON 16 h IG' adeter mi,, .�rtrirne�l Therefore, the 17 county's failure to consider the degree of adverse effects of blasting -generated dust on the 18 Walker residence under OAR 660-023-0180(5)(d)(A), before proceeding to consider whether 19 measures can reduce those adverse effects under OAR 660-023-0180(5)(d)(B), appears to be 20 harmless error, unless petitioners demonstrate that the county erred in concluding that the 21 condition limiting blasting to times when the prevailing winds are blowing away from the 22 Walker residence is insufficient to minimize the conflict. 23 With respect to the condition, petitioners contend that the wind data they submitted is 24 more accurate and reliable than the data the applicant submitted, and that during winter 25 months the prevailing winds blow more often than not from the mining site toward the 26 Walker residence. However, petitioners have not demonstrated that the data they submitted Page 15 1 so undermines the data the county relied that no reasonable decision maker could rely on it. 2 Further, even if the county chose to rely on petitioners' data, that data indicates that more 3 than 40 percent of the time the wind is blowing away from the Walker residence. If, as the 4 county found, blasting occurs at most 6 times per year, as a single event lasting seconds, there 5 would appear to be ample opportunities to blast during periods when the wind is blowing 6 away from the Walker residence. 7 Finally, petitioners argue that the condition that "[b]ased upon the anemometer data 8 collected by Kleinfelder, blasting will occur when the prevailing wind is blowing away from 9 the Walker residence," is indefinite and infeasible. With respect to indefiniteness, petitioners 10 argue that it is unclear what is meant by the first phrase, "[b]ased upon the anemometer data 11 collected by Kleinfelder[.]" Petitioners suggests this could mean that blasting can occur in 12 2009 and subsequent years on the days between November 19 and December 26 that the 13 Kleinfelder study determined had favorable winds, during the same period in 2007. 14 Petitioners also argue that it is not clear what the second phrase means, "blasting will occur 15 when the prevailing wind is blowing away from the Walker residence." Petitioners contend 16 that there is no indication how long a sustained wind direction must exist before it becomes 17 "prevailing." 18 While the condition could certainly be worded more clearly, we believe it is 19 sufficiently definite to inform the applicant and interested parties what is required. We do 20 not believe the first phrase, "[b]ased upon the anemometer data collected by Kleinfelder," can 21 reasonably be interpreted to mean that blasting can occur on any date in 2009 or in 22 subsequent years that the Kleinfelder data collected in 2007 indicated had favorable winds, 23 regardless of the wind direction on the actual blasting date. Based on the findings and the 24 wording of the condition as a whole, it is clear that the county contemplates an ongoing 25 obligation to measure wind speed and direction and, based on that current information, to 26 conduct blasting only during periods when the winds are blowing away from the Walker Page 16 1 residence. Similarly, while the condition does not specify what constitutes the "prevailing" 2 wind, the county clearly contemplates that blasting will only occur during periods when the 3 currently collected wind data indicates a sustained wind direction away from the Walker 4 residence. 5 With respect to feasibility, petitioners argue that there is no evidence in the record that 6 is it feasible to blast only when the prevailing wind blows away from the Walker residence, 7 or that such a condition would be effective in minimizing dust impacts. However, it is not 8 clear what evidence regarding feasibility petitioners believe must be in the record. The 9 county found that blasting will be infrequent and limited in duration. There is no dispute that 10 the timing of when to blast is under the applicant's complete control. The applicant is 11 required by the condition to collect wind data and use that data in determining when to blast, 12 to ensure that blasting occurs only when the winds blow away from the Walker residence. 13 Petitioners do not explain why they believe compliance with the condition is infeasible. 14 The only specific argument petitioners raise is to point to a statement in petitioners' 15 final argument to the county, in which petitioners attribute to the applicant a statement that 16 the applicant "acknowledges that once it is committed to blasting on a particular day, it will 17 do so regardless of the wind's speed or direction at the time of the blast." Record 42. We 18 understand petitioners to argue that the applicant has expressed an intent to conduct blasting 19 even though the winds are blowing toward the Walker residence, which would obviously be 20 inconsistent with the condition. However, the applicant apparently proposed or agreed to the 21 disputed condition below, and it seems unlikely that the applicant intends to violate it. Even 22 if that were the case, we do not see that an applicant's intent not to abide by a condition of 23 approval demonstrates that the condition is "infeasible." If the applicant in fact chooses not 24 to comply with the condition on a particular occasion, petitioners do not dispute that the 25 county has the authority to take appropriate enforcement measures. 26 The fifth assignment of error is denied. Page 17 1 The county's decision is remanded. Page 18 Certificate of Mailing I hereby certify that I served the foregoing Final Opinion and Order for LUBA No. 2008-189 on September 22, 2009, by mailing to said parties or their attorney a true copy thereof contained in a sealed envelope with postage prepaid addressed to said parties or their attorney as follows: Laurie E. Craghead Assistant Legal Counsel Deschutes County Counsel 1300 NW Wall Street Suite 200 Bend, OR 97701-1960 Robert S. Lovlien Bryant Lovlien & Jarvis PC PO Box 880 Bend, OR 97709 Zack P. Mittge Hutchinson Cox Coons DuPriest Orr & Sherlock PC 777 High Street, Suite 200 Eugene, OR 97401-2782 Dated this 22nd day of September, 2009. Kelly Burgess Debra A. Frye 7/ Paralegal Executive Support Specialist BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW EST I3LISH LD 1915 Neil R. Bryant Robert S, Lovlien John A. Berge Sharon R. Smith John D. Sorlie Mark G. Reinecke Melissa P. Lande Kitri C. Ford Paul J. Taylor Kyle D. Wuepper Jeremy M. Green Helen L. Eastwood Peter A. Christoff Melinda Thomas 591 S,W. Mill View Way Mail: P.O. Box 880 Bend, Oregon 97709 Phone: (541) 382-4331 Fax: (541) 389-3386 WWW.BLJLAWYERS.COM June 16, 2010 PAUL BLIKSTAD DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPT. 117 NW LAFAYETTE AVE. BEND, OR 97701 ,JUN 1 7 Re: 4-R Equipment, LLC File No.: PA-04-8/ZC-04-6 Dear Paul: The Board of County Commissioners issued its Decision in File No. PA -04-8, ZC-04-6 on October 1, 2008. The Decision was appealed to LUBA by Tammera Walker and Clay Walker. LUBA issued its Final Opinion and Order on September 22, 2009. LUBA denied the Second, Third and Fifth Assignments of Error. However, LUBA did sustain the First and Fourth Assignments of Error. LUBA, in its Decision, essentially found as follows: "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 Wells 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 660-023-0180(5)(a), and whether "factual information indicates significant potential conflicts beyond" the initial 1,500 -foot impact area provie3d under the administrative rule, the county must sometimes evaluate evidence regarding land that is located outside the initial 1,500 -foot impact area and potentially some distance from the mining site. The county's failure to appreciate that there are Evans Wells Ranch grazing allotments in the vicinity other than the adjacent 40 -acre allotment, such as the Flat Pasture area with its water source, means 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 the Evans Wells 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. BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT Law ESTABLISH Eu 1915 Neil R. Bryant Robert S. Lovlien John A. Berge Sharon R. Smith John D. Sorlie Mark G. Reinecke Melissa E Lande Kitri C, Ford Pau] J. Taylor Kyle D. Wuepper Jeremy M. Green Helen L. Eastwood Peter A. Christoff Melinda Thomas 591 S.W. Mill View Way Mail: P.O. Box 880 Bend, Oregon 97709 Phone: (541) 382-4331 Fax: (541) 389-3386 WWW,BLJLAWYERS.COM Paul Blikstad June 16, 2010 Page 2 Even if it is determined that the one-half mile impact area chosen by the county is justified for purposes of OAR 660-023-0180(5)(a), remand is necessary in any case, because the county's findings regarding conflicts with agricultural uses under OAR 660-023-0180(5)(b)(E) also appear to be based on the misapprehension that the only grazing within the impact area occurs on the adjacent 40 -acre parcel. The Nashes testified, and intervenor does not dispute, that other Evans Wells Ranch grazing allotments are located within the one-half mile SMIA overlay zone. Finally, the county's findings under OAR 660-023- 0180(5)(b)(E) do not address the Nashes' testimony regarding the noise impacts on their cattle operation, or need 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 farming 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 either 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 660-023-0180(5)(e)." In response to LUBA's Decision, the Applicant has retained the services of Sage West, LLC and Roger Borine, CPSS, CPSC, PWS. The report prepared by Mr. Borine addressed the first and fourth assignments of error and the issues raised by LUBA in its Decision. Mr. Borine concluded as follows: "The `impact area' to the Evans Well Ranch operation for this study was determined to be the Flat Pasture in the Horse Ridge Allotment. 'All relevant evidence... ` to the impact area that may impact a ranching operation and specifically the mining operation, was identified and assessed for its potential impact. The analysis of data to determine if the `factual information indicate significant potential conflicts' supported the conclusion that the Spencer Well Mine will not impact the Evans Well Ranch operations. In addition, the Spencer Well Mine will not create noise or disturbance over and above already existing conditions in the Flat Pasture on the cattle and the cattle operation." BRYANT, LOVLIEN & JARVIS, PC TAT TORNEYS AT L. -kW ESTABLISH EI) 1915 Neil R. Bryant Robert S. Lovlien John A. Berge Sharon R. Smith John D. Sortie Mark G. Reinecke Melissa P. Lande Kitri C. Ford Paul J. Taylor Kyle D. Wuepper Jeremy M. Green Helen L. Eastwood Peter A. Christoff Melinda Thomas 591 S.W. Mill View Way Mail: P.O. Box 880 Bend, Oregon 97709 Phone: (541) 382-4331 Fax: (541) 389-3386 W WW.BLJLAWYERS.COM Paul Blikstad June 16, 2010 Page 3 The purpose of this letter is to request that a hearing on this remand be set before the County Commission at the earliest possible convenience. We appreciate your cooperation. Very truly yours, j r l G ` `i .(a -a) ROBERT S. LOVLIEN RSL/alk cc: 4-R Equipment, LLC 6829-084 106 BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW ESTABLISHED 1915 Neil R. Bryant Robert S. Lovlien John A. Berge Sharon R. Smith John D. Sorlie Mark G. Reinecke Melissa P. Lande Kitri C. Ford Paul J. Taylor Kyle D. Wuepper Jeremy M. Green Helen L. Eastwood Peter A. Christoff Melinda Thomas 591 S.W. Mill View Way Mail: P.Q. Box 880 Bend, Oregon 97709 Phone: (541) 382-4331 Fax: (541) 389-3386 WWW BLJLAWYERS.COM June 22, 2010 HAND DELIVERED PAUL BLIKSTAD DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPT. 117 NW LAFAYETTE AVE. BEND, OR 97701 JON 2 2 2010 � r Re: 4-R Equipment, LLC File No.: PA-04-8/ZC-04--6 Dear Paul: Enclosed please find the original and two copies of Roger Borine's report for your delivery to the County Commission. Please call me if you need anything further. Very truly yours, 4..„6 ROBERT S. LOVLIEN RSL/alk Encl. 6829-084 107 Sage West, LLC Roger Bonne, CPSS, CPSC, PWS Soils, Wetlands, Wildlife Habitat (541) 610-2457 June 20, 2010 Robert S. Lovlien Bryant, Lovlien, & Jarvis, PC 591 S.W. Mill View Way PO Box 880 Bend, OR 97709 Re: 4-R Equipment, LLC/Surface Mine/Millican Valley Dear Mr. Lovlien, Please find attached my response to LUBA's Final Opinion and Order dated September 22, 2009. It addresses the First and Fourth Assignments of Error, and specifically the "impact area" to the Evans Well Ranch operation, "all relevant evidence..." regarding Evans Well Ranch allotments in the vicinity and potentially affected by the mining operation, and determines the size of the impact area based on whether `factual information indicate significant potential conflicts"; as well as, the issue of noise impact on the cattle and the cattle operation. Sincerely, "4/ ,,c ....„Th Roger Borine 64770 Melinda Court rborineebendbroadband.com Bend, OR 97701 CCB# 173984 Spencer Well Mine 1 Deschutes County, OR Introduction This report addresses the request for additional information regarding the First and Fourth Assignments of Error in LUBA's Final Opinion and Order dated September 22, 2009. It states: "Under the first assignment of error, petitioners argue that the county erred in failing to expand the impact area to include other portions of the Evans Well Ranch. Under the fourth assignment of error, petitioners challenge the county's findings with respect to conflicts with agricultural uses within the one- half mile impact area. Because the issues raised under these assignments of error overlap, we discuss them together." In addition, "The remand is necessary for the county to consider all relevant evidence regarding all Evans Wells 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 indicate significant potential conflicts" with grazing on those allotments."And, "Finally, the county's finding under OAR 660-023-0180(5)(b)(E) do not address the Nashes' testimony regarding noise impact on their cattle operation, or indeed noise impact on cattle at all." This report will address the "impact area" to the Evans Well Ranch operation, "all relevant evidence..." regarding Evans Well Ranch allotments in the vicinity and potentially affected by the mining operation, and determine the size of the impact area based on whether "factual information indicate significant potential conflicts"; as well as, the issue of noise impact on the cattle and the cattle operation. Abstract The "impact area" is determined to be the "Flat Pasture". It is the only pasture in the Horse Ridge Allotment that shares a common boundary with the Spencer Well Mine and is approximately 5,010 acres or 7.3 square miles in size. The optimal period for grazing 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. 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. This analysis determined and supports the conclusion that the Spencer Well Mine will not impact the Evans Well Ranch operations. In addition, the Spencer Well Mine will not create noise or disturbance over and above already existing conditions on the cattle and the cattle operation. Findings Spencer Well Mine The proposed Spencer Well Mine (SWM) is located southeast of the intersection of US Highway 20 and Spencer Well Road. This parcel is approximately 370 acres of which 145 acres will be mined. The remaining 225 acres will consist of natural areas and consist of a 600 foot setback along US Highway 20, a 200 foot setback along Spencer Well Road, and 100-250 foot setbacks along the remaining undeveloped perimeter. Three phases of mining are planned. Phase I will mine 32 acres. Depending upon market demand, 0 to 2 acres will be mined per year. A typical mining stage site will be about 1 acre. Top soil will be removed to bedrock and stockpiled for use in future restoration. A hydraulic drill will place holes on 7 foot spacing 40-50 feet deep; explosives will be placed in holes and detonated. Fractured rock will be crushed on site. Crushed rock will be stockpiled for transport. Sage West, LLC Roger Borine Bend, OR rborine@bendbroadband.com (541) 610-2457 Spencer Well Mine 2 Deschutes County, OR Mining operations will occur during the months of November -February. Schedule of operations: Stock Piling Soil Drilling Blasting Crushing Transport < one week 1-2 weeks Instant (1-2 per year)* 2-3 months As needed 7am-5:30pm 7am-5:30pm 2-6pm 7am-5:30pm 7am-5:30pm *Noise from blasting produces a 124 dB shockwave at 500 feet for an instant (calculated for a 1 acre site with 556 holes, 40-50 feet deep, charged and detonated). The initial noise level will be greatest in the first blast and first crushing of each phase. Subsequent blasting and crushing will take place below the ground surface and shockwaves will dissipate more quickly and travel a shorter distance and noise will be less than 124 dB at 500 feet. Evans Well Ranch Grazing Allotment The Evans Well Ranch (EWR) grazing operation includes the USDI-Bureau of Land Management's (BLM) Horse Ridge Allotment. This allotment is approximately 22,152 acres and consists of six pastures (see map). Each pasture in this allotment has an established season of use and planned use period. They are outlined in BLM's Resource Management Plan (RMP) and specifically in the Allotment Management Plan (AMP). Forage allocation for livestock in the Horse Ridge allotment is 1800 Animal Unit Months (AUMs). A grazing schedule and strategy may vary each year to respond to plant, wildlife, or livestock needs. Class and number of livestock may vary each year on the EWR, however, forage utilization should not exceed 1800 AUMs annually. In the AMP each of the six pastures has an assigned Season of Use and a Planned Use Period for livestock grazing. Horse Ridge Allotment Grazing System: (see allotment map) Allotment Pasture Name Season of Use Planned Use Periods Horse Ridge (#5210) Flat continuous continuous Stookey Jan 1 -Dec 31 * - Horse Ridge Jan 1 -Dec 31 * - Golden Basin Jan 1 -Dec 31 * Evans Well July 1 -Feb 28 7/1-9/15; 9/16-10/31; 11/1-2/28 * Spencer July 1 -Feb 28 7/1-9/15; 9/16-10/31; 11/1-2/28 * * Alternate season of use each year The perimeter of each pasture is fenced with no interior cross -fencing. Private lands are not fenced to exclude livestock. Free access and grazing occurs on private, state and county lands. Evans Well and Smith Well provide water to livestock conveyed through 16 miles of underground piping to water troughs located in each pasture. • The Horse Ridge allotment's Flat Pasture is the only pasture in the EWR grazing allotment that shares, in part, a common boundary with the proposed Spencer Well Mine (SWM). • The Flat Pasture is approximately 5,010 acres or 7.3 square miles. Its 11,000 foot eastern boundary has 1,320 feet of BLM grazing land (tax lot 19142501100) that is shared with the proposed SWM's boundary. • The Flat Pasture and the SWM are separated by a fence and the paved Spencer Well Road. • The SWM is not within the boundary of the Horse Ridge Allotment's Flat Pasture. • The five remaining pastures in the Horse Ridge Allotment are a minimum of 2 air miles at their closest point from the SWM. Sage West, LLC Roger Borine Bend, OR rborine@bendbroadband.com (541) 610-2457 Spencer Well Mine 3 Deschutes County, OR Range Production and Condition The Flat Pasture has several plant communities identified in various proportions. The Pumice 8-10 PZ Ecological Site R023XY5140R (Soil Survey of Upper Deschutes River, Oregon; NRCS) is approximately 81% of the pasture. Range condition is the similarity of current range condition as compared to the Historic Native Plant Community. Range condition in the Flat Pasture is estimated to be in poor to fair condition throughout due to the decrease of perennial bunchgrasses and the increase of annual grasses and sagebrush. Vegetative growth on this site is primarily during April and May (NRCS). One acre produces approximately 250#/ac/yr of useable forage for cattle. For the remainder of the year plants are low in palatability and nutrition. Forane Droduced for cattle in Flat Pasture in a one mile radius from the SWM: AUM= 1,000# forage for one cow and calf for one month, four acres produce one AUM Livestock As range cattle enter new pastures they tend to explore their space and then occupy areas that best meet their basic needs. Areas that have preferred plants and adequate water tend to congregate cattle. Management practices to evenly distribute cattle and promote proper plant utilization are the placement of water, salt and minerals, and supplemental feeding. When water sources are close, cattle spread out and go to water individually as needed, when water sources are far, cattle occur in larger groups and move to water by trailing. Cattle prefer to lounge around streams, reservoirs, and water developments. Water should be no more than 1.3 miles on the driest of rangelands; rough land 1 mile, flat land 2 miles (University of Wyoming Cooperative Extension Service). Flat Pasture: • Water developments are greater than two miles from the SWM. • No salting/mineral stations were observed within one mile of SWM, and there is no supplemental feeding allowed on public land. Cattle are able to hear a wide range of frequencies ranging from 16-40,000 Hertz (Hz). Humans are able to hear 20-20,000 Hz. Human voice is more upsetting to cattle than clanging metal in handling chutes (Jon M. Watts, Animal Behavior Research Associate, University of Saskatchewan's Western College of Vet Medicine). Also, cattle show signs of habituation to noise within 5 days, but its unknown if habituation occurs with similar noises during infrequent handling. In addition to, and supporting the previous study it was also found that human voice is more unsettling than metal banging. (Applied Animal Behavior Science; "The Responses of beef cattle to noise during handling"; D.F.Waynard, J.M. Stockey; 9/27/98). Flat Pasture Ownership Horse Ridge Allotment - Flat Pasture (5,010 acres total) Flat Pasture BLM Lands Private Lands Area (1 mile radius) 960 ac 740 ac 220 ac AUM's 240 185 55 # cattle: April -June 80 62 18 AUM= 1,000# forage for one cow and calf for one month, four acres produce one AUM Livestock As range cattle enter new pastures they tend to explore their space and then occupy areas that best meet their basic needs. Areas that have preferred plants and adequate water tend to congregate cattle. Management practices to evenly distribute cattle and promote proper plant utilization are the placement of water, salt and minerals, and supplemental feeding. When water sources are close, cattle spread out and go to water individually as needed, when water sources are far, cattle occur in larger groups and move to water by trailing. Cattle prefer to lounge around streams, reservoirs, and water developments. Water should be no more than 1.3 miles on the driest of rangelands; rough land 1 mile, flat land 2 miles (University of Wyoming Cooperative Extension Service). Flat Pasture: • Water developments are greater than two miles from the SWM. • No salting/mineral stations were observed within one mile of SWM, and there is no supplemental feeding allowed on public land. Cattle are able to hear a wide range of frequencies ranging from 16-40,000 Hertz (Hz). Humans are able to hear 20-20,000 Hz. Human voice is more upsetting to cattle than clanging metal in handling chutes (Jon M. Watts, Animal Behavior Research Associate, University of Saskatchewan's Western College of Vet Medicine). Also, cattle show signs of habituation to noise within 5 days, but its unknown if habituation occurs with similar noises during infrequent handling. In addition to, and supporting the previous study it was also found that human voice is more unsettling than metal banging. (Applied Animal Behavior Science; "The Responses of beef cattle to noise during handling"; D.F.Waynard, J.M. Stockey; 9/27/98). Flat Pasture Ownership Horse Ridge Allotment - Flat Pasture (5,010 acres total) BLM State County Private* EWR Acres % Acres % Acres % Acres % Acres % 3,258 65 50 1 102 2 1,600 32 80 2 _ * Approximately 92 separate privately owned parcels ranging in size from 0.5-160 acres Sage West, LLC Roger Borine Bend, OR rborine@bendbroadband.com (541) 610-2457 Spencer Well Mine Deschutes County, OR Flat Pasture Land Uses • Two miles of US Highway 20 on the northeast, two miles of Spencer Well Road on the east, and the remaining borders are the allotment's five pastures. • Six miles of Evans Well Road that is entirely within the pasture. • South Millican Valley OHV Trail System (BLM) that includes 8 miles of trails and two staging areas. • Approximately 92 parcels of private properties (limited development). • Oregon Department of Transportation gravel staging area. • Numerous undeveloped two -track roads. 4 Development location Impact Amount Highway 20 Northeastern Border noise, fenced 2 miles Spencer Well Road Eastern Border, paved noise, fenced 1.75 miles Evans Well Road Entirely within pasture, improved gravel noise, not fenced, disturbance _ 6 miles Unimproved Roads Entirely within pasture noise, not fenced, disturbance, shooting 13 miles South Millican Valley OHV Trail System (BLM) Entirely within pasture h noise, not fenced, harassment, disturbance (closed Dec 1 -July 31) 8 miles Ford Rd OHV Staging Area (BLM) SE corner, entirely within pasture noise, not fenced, disturbance, harassment 2 acres Unnamed OHV Staging Area (BLM) 1 Near north boundary, entirely within pasture noise, not fenced, disturbance, harassment 3 acres ODOTStaging Area Hwy 20/Evans Well Road noise, not fenced, disturbance 2 acres Residential and Recreational structures on private lands scattered noise, harassment, disturbance, shooting 0.5-10 acres Noise • Decibel (dB) is sound pressure level (volume); Hertz (Hz) is frequency, cycles per minute (pitch). • Human hearing is 20-20,000 Hz; Cattle hearing is 16-40,000 Hz. • Blasting (explosion) produces a low frequency shockwave measured in decibels that is characterized by an abrupt, nearly discontinuous change in the volume. Energy of a shockwave dissipates quickly with distance. • 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. Sage West, LLC Roger Borine Bend, OR rborine@bendbroadband.com (541) 610-2457 Spencer Well Mine 5 Deschutes County, OR Examples of Sound Sources and Decibels produced: Sound Source Decibels (dB) OSHA Daily Permissible Noise Level Exposure Hours/day Sound level )rmal tome (3-51 '° :_ 60-70 - Truck traffic 90 8 90 Level @ sustained exposure may result in hearing loss 90-95 4-8 - Motorcycle 100 2 100 Thunderclap 120 < 0.25 115 Rock Concert 120-130 < 0.25 - SWM blasting <124 < 0.25 - Drt m set at moment of strike ' 125 < 0.25 - Pain begins 125 < 0.25 Gun blast 140 < 0.25 - Analysis Many factors contribute to determining a potential "impact area" to the Evans Well Ranch operation. The Flat Pasture is the only pasture in the Horse Ridge Allotment that shares a common boundary with the SWM and is approximately 5,010 acres or 7.3 square miles in size. The SWM is not within the boundary of the Horse Ridge Allotment. The Flat Pasture and the SWM are separated by a fence and the paved Spencer Wells Road. The additional five pastures in the Horse Ridge Allotment are a minimum of 2 air miles at their closest point to the SWM. The Flat Pasture is determined to be the "impact area" The "Findings" section identified factual data for the SWM operation, the EWR grazing allotment, range production and condition, livestock behavior, and the Flat Pasture's ownership and land uses. In addition, factual data regarding noise was identified that is pertinent to the issue of potential noise impact on the cattle and the cattle operation. This data is considered to be 'factual information to indicate significant potential conflicts" of the "impact area". Findings outlined "all relevant evidence..." regarding Evans Well Ranch allotments in the vicinity and potentially affected by the mining operation. Existing Conditions and Impacts to EWR: Grazing in the Flat Pasture is continuous. Range condition and production will not improve with this management scheme. Present condition will only continue to degrade, thus reducing the amount of available forage for livestock. The optimal period for grazing annual and perennial grasses by livestock near the SWM is in late March, April, May and early June. Vegetation grazed after this period is of poor quality and will not attract or hold livestock. Available water is greater than two miles from the area near SWM. Salting has not been regularly practiced to pull livestock from better feed and water to the areas adjacent to the SWM. Livestock occurring near the SWM area in months other than late March to early June will occur incidentally and for brief periods. Sage West, LLC Roger Borine Bend, OR rborine@bendbroadband.com (541) 610-2457 Spencer Well Mine 6 Deschutes County, OR Existing noise is contributed by traffic on Hwy 20, Spencer Well Rd, Evans Well Rd and unimproved dirt roads, shooting; motorcycles and staging areas; and home and recreation sites on private lands. Existing decibel levels range from 60 to 140 dB within the pasture. Conditions with SWM Operating to EWR: Full operations of the SWM will be during November -February. Land clearing, drilling and blasting will be conducted in a 3 week period with one blast reaching the 124 dB level for an instant. Crushing will be in a 2-3 month period at or below natural ground level. All activities are within the existing 60-140 dB levels occurring regularly in the Flat Pasture and during a period that small numbers of livestock may only be in the vicinity and incidentally for short periods. The SWM operation's truck traffic will increase slightly on Spencer Well Road and Hwy 20. The SWM is not part of the Horse Ridge allotment and activities will not restrict or disturb livestock movement in the Flat Pasture. Future Potential Impacts to Flat Pasture: The land near the mine is private and not fenced, and BLM land (tax lot 19142500100) is partially fenced and excludes livestock. Private lands could be fenced to exclude livestock, thus restricting access by livestock to several BLM parcels along Spencer Well Road. All private lands within the allotment could exclude livestock that would reduce grazing by 1600 acres or 32%. Conclusion The Flat Pasture is determined to be the "impact area". It is the only pasture in the Horse Ridge Allotment that shares a common boundary with the SWM 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 grazing 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 northeastern 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. "All relevant evidence..." to the impact area that may impact a ranching operation, and specifically the mining operation, was identified and assessed for its potential impact. This analysis determined and supports the conclusion that the Spencer Well Mine will not impact the Evans Well Ranch operations. In addition, the Spencer Well Mine will not create noise or disturbance over and above already existing conditions on the cattle and the cattle operation. Roger Borine CPSS, CPSC, PWS Sage West, LLC Sage West, LLC Roger Borine Bend, OR rborine@bendbroadband.com (541) 610-2457