Document text
Oral Argument 2024-082/083/085 Redside Restoration v. Deschutes County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=yUiLc5RO_Vc). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
You're fine. I don't mind I won't feel waiting on the county. Is the county waiting to be let go. Good morning. This is the time set for oral argument in Redside Restoration Project 1 LLC versus Dashuites County Luba numbers 2024-082 083 and 085. As you'll probably notice, we're trying a new format for oral argument today. So, please bear with us if we have any technical difficulties. We can see the attorneys for all of the parties on our screen. And I am board chairs and with me today are board members uh Wilson and Basham. Please mute your audio when you're not speaking. And I'm not aware of any pending motions in this matter. Is there anything the parties need to bring to our attention? See none. None. Uh oral argument is a total of 30 minutes. Um petitioners and intervenor petitioner will share 15 minutes. Have you decided among yourselves how you'll share your time? Yes, we have. This fineman, am I audible for you? Yes. Okay. I think Mr. Katzoff, you were shaking your head. Can you hear uh Mr. Kleinman? He's quite soft for me. I'm not sure if he can turn it up at all. Trying to turn it up. Is this any better? Yes, it is. so we have uh decided to divide time between Mr. Hley and me and uh we'll each take five minutes on rebuttal. It's possible that one of the other attorneys uh on this side. Okay. So, my understanding is uh there will be two fivem minute presentations and then the petitioners want to reserve five minutes for rebuttal. Exactly right. Thank you. Thank you. And thank you for deciding that in advance. and county and intervening respondents attorney. You'll share your 15minute uh response. Have you decided among yourselves how you'll share your time? Yes. Yes, we have, your honor. Um Stephanie Marshall, senior assistant legal counsel at Dashuites County. Um I will be taking approximately five minutes and the remainder of the time will be allocated to the intervenor respondents attorney, Mr. Katzro. Okay. Thank you. Thank you everyone for your briefing and for being here today. And with that, uh, whomever from the petitioners wants to start, you may state your name for the record and begin. Go ahead. Okay. Uh, this is Jeff Fineman uh, on behalf of the Buchanan and Keystone. I think it's important uh, for the purposes of this case to bear in mind the and keep some perspective on the on the legal framework. So planning statewide planning goal three is to preserve and maintain agricultural lands. Uh while all of statutory agendy's policy is important, O RS 2152432 is especially relevant and provides that the preservation of the maximum amount of the limited supply of a land is necessary um to the conservation of the state's economic resources and preservation of such land in large blocks is necessary goes on from there. Uh the definition of uh which the legislature defined broadly whether land is within the goal three definition of a land and relatedly whether land is suitable for farm use as defined by RS 2152032A are questions of state law. Other words, there are legal questions under KGI versus Fanton County 152 or act 131. Um, we have cited the board to Clo versus Tamo County 43 or Yuba uh 4. Uh, and this is the 2002 decision, not the 2005 decision. Um and uh in that case the board held that if property has some value as farmland if used in conjunction with a neighboring commercial farm or ranch um then under the rule uh that prohibits a finding that the property is generally unsuitable for farm uses. Um that case arises under the non-farm dwelling um provisions of the ORS. However, that's the only place in the OAR that the in conjunction with language uh appears. But um and again, the way the test is stated, it's a question of law. Uh if a reasonable farmer or rancher can make use of the property in conjunction with their adjacent or nearby land, it doesn't matter how many witnesses an applicant can round up to contend otherwise. Um, Luba adopted the in conjunction with language uh in uh both Landwatch versus Lane County 77 or Luba at 371 and Weather versus Douglas County 5 or Luba at 186 to 187. under the farmland statute generally uh reading OAR 66033 sub3 uh to require an analysis as to whether the suitability for farm use inquiry well it it it explained that the suitability for farm use inquiry must consider the potential for use in conjunction with adjacent or nearby land. So it doesn't matter whether uh whether it's a non-farm dwelling case or a case like this involving a five papa Um very quickly uh the state agencies with expertise in this uh area uh in particular ODA, ELCB and OBFW uh submitted joint written testimony uh that stated that according to the landowner's own estimates of grazing potential the 7 central property is the productive norm for native rangeand in the region and uh represents average rangeand pastures down in central Oregon uh that have been successfully managed for livestock grazing since cattle and sheep were introduced and that's at pages 190 and 191 of the record. That is precisely the use that's proposed and intended by Keystone making use of Mr. Buchanan's uh lifelong ranching experience and the market that the Buchanan have successfully developed in central Oregon and metro Portland for their beef uh which is derived from their breeding or crossbreeding Angus and cattle. Um and I will stop there and uh hand off to Mr. Howley. Thank you. Good morning. For the record, Jamie Hley on behalf of petitioner redside. Groundwater, especially on the east side of the Cascades, is an infinite finite resource. 71 houses will consume considerable portion of that resource. The decision here first admits that all four properties in the study area rely on groundwater for irrigation and the Buchanan rely on groundwater for stock watering as well. That's at the record on 71. In addition, the the Johnson's uh the Mayo Phillips and Redside Farms are also adjacent and nearby, but the applicant and decision focus squarely on the Buchanan. The decision itself concludes that after a review of the expert evidence related to water impacts, we find that the existing resource designation and zoning is not necessary in order to allow existing farm practices in the study area and beyond to continue. Again, that's at record 71. But 1,00 friends is correct that whether groundwater consumption will allow farm practices to continue is not the correct standard for 00201 small a big C. The question is whether or not the land is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. So declining groundwater levels may not permit irrigation to be undertaken on nearby agricultural lands due to the cost of drilling and deepening those irrigation wells. So where's the evidence here? On the substantial evidence question, the decision relies on evidence about uh one domestic well costing approximately uh $6,537 for for deepening that domestic well. That's at the record at page 75. But the criteria uh regard impacts the surrounding wells used for irrigation. The only evidence in the record here is the cost of deepening an irrigation well uh from Mr. Long and the CWM where the the cost ranges between 60,000 to over $150,000 to do that. That is at the record 16.97. that is a 9 to 22 time uh increase in the cost of deepening uh of a domestic well. The the decision neither explained why Mr. Long's cost estimate is incorrect nor cited an alternative estimate. The decision never found that an irrigation welldeening would not adversely impact farm profits here. No reasonable decision maker would rely on evidence regarding one small domestic well when evaluating farming practices that involve irrigation. So in summary, uh goal three and its implementing rules require the preservation of agricultural land in large blocks to essentially avoid a domino effect of non-farm uses taking over uh within an area. Carried to that logical end, grazing lands would never be protected and therefore available for ranchers like Mr. Kleman's clients, the Buchanan. Without designating and protecting these lands, there's nothing to prevent their continuing loss. And with that, uh, I'll stand unless there's any questions and look forward to rebuttal. No questions from the board. So, you will have your full five minutes for rebuttal. And we will turn now to uh the county intervening respondent, whomever's going to start on that side. Um good morning, your honor. Stephanie Marshall, senior assistant legal counsel for Dashets County. I will uh start on the respondent side. Um and thank you for um for hearing uh oral argument today. Um we uh the county believes that um the issues raised by the petition petitioners and uh intervenor petitioners it are adequately addressed in the briefs but there are a few things that I wish to highlight uh very briefly and then turn it over to um intervenor respondents attorney uh Kim Katzaroth. Um this appeal uh is a decision of the county board on the specific issues remanded by Luba in 2023. uh petitioners did get a second bite of the apple to essentially uh put more evidence into the record uh to bolster their arguments with respect to the sustainability 6603300201 AC and the water and traffic issues that um um Mr. Hy briefly touched on the water issues uh but no one except the applicant and to some extent the Buchanan um submitted additional evidence for the board's consideration. I do want to make a very brief statement on um the the deepening of the wells argument that uh Mr. Hley just uh mentioned and that uh that argument uh presupposes that the wells will need to be deepened and there is expert evidence um in the in the record that shows that there will not be a significant enough impact or significant impact period to the um groundwater uh as a result of um potentially developing the 710 properties in the future with um with residential uses. Um I have notes that we're going to be addressing the exparte and bias um allegations the first and second the evidence that you're referring to about the uh expert evidence that the domestic walls will not require well deepening on agricultural land. Does you have record citation for that? Um I do not in my notes. Um I will defer to Mr. Katzarov and he can provide a pinpoint site for that. Do you know? Do you refer to it in your brief? Um, we uh we Yeah, real quick. We refer to it in our brief and I believe it's at exhibit. Sorry, it's record citation 2374. It's from the original record also in the original decision and I wasn't challenged. I'm sorry. What was the record citation? I believe it's 2374. Um, but it was also in the 2023 record. I don't have that pin site in front of me, but it is certainly cited in our briefing um and addressed both in the 2020 previous decision and in this decision. There's also additional expert testimony which I will try to touch on, but I don't want to take any more of Miss Marshall's time. Thank you. All right. Um thank you. So, so um as I was just stating um my notes for our oral argument today, um address the first and second assignments of error uh presented by Redside. um we've not heard any oral argument on those issues. I think that um our time uh collectively is best spent um on the issues that um petitioners and intervenor petitioners presented in their testimony. So um I I really just kind of want to summarize and state that um just one note on the exparte and bias allegations. Um really what I wanted to drill down on are these uh workaround um statements that were allegedly made by Commissioner Dabone. Um because the record um now includes the transcript of the testimony at the LCBC hearing. Um the context is clear. What Mr. Dabone was not seeking uh was a workaround to approve this application. The application is decided on the law as it exists um under the goalpost rules at the time of the application. the workaround is is future-looking. Um, you know, how do we best h how can the state best address these these lands that were mischaracterized as a lands um in the future so that they're not, you know, it's not an eitheror. either they have to stay designated as a lands in error or maybe there's a different designation like an open space designation that would um essentially prevent u future reszone or not all prevent um not prevent all future reszone applications but would would have a middle ground where they can retain as as open space areas. So I just wanted to provide that additional note on that. It's evident in the um transcript um that is in the record now. And um if there are no questions on that, I would like to turn over the remainder of the time to Mr. Katzarov. Okay. Uh Ken Kather Schwab Williamson and Wyatt for the interview to respondents. I'm going to first address the well deepening and the water question more thoroughly. Um and I will try to be brief because I know we've had a lot of issues and not a lot of time. Um though I first want to uh mention that although the decision says one domestic they looked at the domestic well in terms of the actual cost of deepening at you know roughly $6,000 $6,500 the actual evidence of the records at page 689 and it doesn't distinguish between uh a domestic well or otherwise it's a 731 ft deep well it doesn't specify domestic the decision says domestic I don't think it is doesn't matter but more Go ahead I encourage you to slow down you're speaking Okay. I know you want to cover a lot, but it's hard for us hard for me. I won't speak for the full board to follow at the rate that you're speaking. And also, if you could give us that record citation again, 689 is the actual well estimate for deepening and cleaning a well at over 731 ft, which is similar to the wells in the area as is shown in the other reports and analysis. The original analysis uh that made the conclusions from the original decision is found at uh uh 2377. And I'm going to just read that really quickly. And what it says is, and this is from GSI Water Solutions several years ago with no contrary evidence in the record, still says based on the published literature, well logs and ground level hydrographs of the steady area. It said keeps going and going. is a long-term groundwater effects in the area declining at a rate of less than half a foot a year. Not based upon general use here and using very conservative estimates of aquaer parameters and pumping rates. Measurable interference with existing wells is unlikely to occur due to the high permeability of the aquifer materials and the low pumping rates for domestic wells. And this looked at a much broader use at 71 domestic wells at a very high level of use. And what Redside continues to ignore, as they did with our traffic analysis, is that there's a conditions of approval agreement as part of this decision that even further restricts the amount of water that you can use. So, not only is it the the expert evidence say you not you're not going to have an impact at all, but we even further reduced it. There's also an additional uh letter from this goround that we provided during the open record period and redside chose not to respond to it and that's from Cascade Geoengineering which made similar findings in response to their expert. Their expert didn't provide any rebuttal testimony. You only have the lay testimony of Mr. Hley unfortunately and their expert didn't even say that there would be significant impact. What he said is that water is finite and that there may be an impact downstream in the river which has nothing to do uh with this particular test which is again not a farm impacts test but whether or not this it's necessary for this property to remain in the agricultural designation due to a presumed lack of impacts. Okay. So the water issue what they're arguing is that water is going to have an impact no matter what. what the actual expert evidence is and none contrary to that is that it's unlikely to have any interference. And so we're looking at this very high standard of necessary that this property remains the same. Not just it would be nice, not that it would be great, but as the court of appeals and this board determined, it has to be truly necessary that a redesignation based upon the presumed last lack of impacts uh wouldn't permit farm practice on surrounding lands. Okay. umation for that Cascade Geo report that was submitted. 938 is the start of it and it goes for several pages. Um but it starts at page 938. Um and the original one is at uh 2377 and the well deepening estimate on a different property that's not a domestic well is 689. Thank you. Okay. Um I want to uh talk about a couple other things. Um, I think it's really interesting that the petitioners in this case, including climman to start, um, uh, are trying to bring this back up to the 30,000 foot level and argue that the rules were misapplied again as opposed to actually looking at what the decision did, citing to it, and addressing the findings and the evidence that that were relied upon by the county. Because if they actually do that, you have a really long decision with detailed findings that specifically cites the evidence and addresses all the standards correctly. But if instead you can try to pull us up to 30,000 just said, "Hey, they did it wrong." Again, we may have a problem. But I don't think we did. Let's be clear here that this is in fact a substantial evidence standard. 66033 sub 2 even says. It says in order to make this determination, you have to have substantial evidence in the record. You have to make findings, substantial evidence on the factors. Okay? So even the rule directs us to that this is a substantial evidence standard and we've addressed all those factors and rather than challenge those findings in their briefs or an oral argument today we're just saying oh no let's just pretend it's a different uh standard of review it's not it's substantial evidence um I want to address thousand friends real briefly because one of the issues that I think there's perhaps uh battling evidence or it's under substantial evidence is the quality of this property for dryland grazing. I understand uh petitioner Buchanan to point to evidence that this property is uh average for dryland grazing quality and I think there's other evidence or will you please clarify that issue for me? Is this of average quality? Is it less than average? What were the findings on that? It is it is exactly not average. It is significantly worse than average. That is the original letter that was submitted by a joint uh tri- agency letter DLCD, ODA uh and uh ODFNW. There's not any new evidence arguing that. They say it's in in that letter they say, oh, it may be average, but then they they provide a number that they believe you could support in terms of cow calf pairs and it's five in a dry year and 10 in a wet year, which if you actually were to produce that amount on an entire 710 acres, you wouldn't even be able to pay for the property taxes. Okay, that's we're, you know, not looking at any other cost. um it's just if you were going to try to support five or 10 cow calf pairs, you couldn't even produce enough beef to pay for the property taxes. And that was part of the findings that were originally made in the 2022 decision and reaffirmed by the county in this decision. However, on remand, we also looked at what Luba asked us to do, which was to look at if you were going to import feed um and what that would do to this analysis and essentially you would lose your shirt. And no party submitted any contrary evidence to that. There is substantial analysis provided by several ranchers including Mr. Rand Campbell that looked at the cost of feed, how much it would cost based upon the actual aums that you could produce on the property and then what it would cost to bring in hay, etc. and you would lose your shirt. Um, on that same point, I'll just say DLCD in this record asked for a specific conjunctive analysis in between the Buchanan property and this 710 acre piece of property. We're the only Buchanan refused to provide us any information. And so that analysis is based upon uh OSU extension service data for how many aums you could produce on their irrigated pasture and all of the other factors based upon their land and our property. That was submitted by Mr. Campbell. It's cited too well in our briefs. Um and it shows that you could not make money. You would lose more money by trying to add this property and in fact uh supplement it with outside feed. Um so that analysis is done. DLCD apparently accepted it because they didn't appeal or otherwise participate in this particular uh goround uh after remand. So again, no other party challenged that. All we have is Mr. Buchanan stating, "Oh yeah, I could make money there with while refusing to provide us other information um and in fact contrary to testimony uh also submitted by the Buchanan about them making money." So that has been well briefed. It is clearly a substantial evidence challenge and the board of county commissioners looked at the seven plus ranchers who have walked this property and testim and testified that they would not try to add this property for dryland grazing because you would lose your shirt. Okay? There's no way to make money here. This is not a first goound. This is a second goound. They had the opportunity to try to find different evidence. They didn't because they can't get people to say you could except for Mr. Buchanan who refuses to provide any other information. I have to address thousand friends before my time is up. Um, we believe that a lot of their arguments are waved, but we neglected to cite a very important rule, very important statute, which is OS 1976 622. And what that law says, it's only a couple years old, but what that law says is uh it relates to amendments to comprehensive plans, which after remand from Luba, which is exactly what this is. And what it says is when a local government adopts a change to an acknowledged comprehensive plan or land use regulation and the land use board of appeals remands all or a portion of that decision based solely on inadequate findings or evidence. If the local government adopts the same changes following remand with revised findings and additional evidence to the remand, then a party may not raise new issues that could have but were not previously raised before the board, but may only challenge the revised findings or additional evidence. And if you look at what this board said in their remand previously, it said, quote, "The county must consider evidence and adopt findings addressing the impacts of redesation of the property related to water, wastewater, traffic, and whether retaining the property's agricultural designation is necessary to permit farm practices on adjacent or nearby lands." That's exactly what we have here. And so these new issues 197622 cited in the response briefs. No, that's what I said. We neglected to cite that. So oral argument is only for issues that are raised in the briefs. The board won't consider new issues raised for the first time at oral argument. Uh my understanding is that's from a petitioner side and not for a defensive posture. I don't think the board has ever made a decision different than that. And so we're raising it now because although it codifies the rest of the waiver standards, it still applies in this instance. So there's nothing in luba rules or past case law that applies it to a county or a respondent responding to arguments made. Thank you. You've uh you've met the 15 minutes time. Thank you for your argument today. We will return to the petitioners for rebuttal. Thank for and east. Um the reason we provided the legal perspective that we did on oral argument is that the briefs addressed the decision in full and addressed the record in detail. Um with respect to the comment that council made about DLC's letter uh the multiple state agency letter um if uh the reading espoused by the applicant is correct then um the state agencies are conceding that you cannot possibly uh use any of the range land in climman we're losing like every third word. If you could get the microphone closer to your mouth or I'm so sorry. Is that better? That's better. Thank you. Okay. Um so as I said the briefs addressed the uh decision and the findings in full and we provided some perspective um from a higher altitude as has been suggested uh because that's the framework within which rules must be read if their reading of the LCB's letter is correct uh then all the out. Mr. Buchanan has testified that there is no need to import feed for that property. He has ranched uh more difficult property in Jefferson County profitably recently. So um and there is no point in speculating on why the state did not participate council is the evidence that there that this is uh average for dryland grazing I understand you're you're supporting that with the multiple state agency letter and evidence from uh petitioner Buchanan. Is there contradictory evidence that the county relies on in finding this is below average or is the issue that average dryland grazing uh can't make a profit so it's not a farm use? Um I I don't think there is contrary evidence except um well I don't think there is to answer your question. Um and bear in mind uh land and capability classes other than 1 through6 that is adjacent to or intermingled with lands in those classes shall be inventory of this agricultural lands even though the land may not be crop or grazed. There's 200 acres minimum of class six on this property and Mr. Buchanan testified at length on how that can be enhanced with additional dryland press. So with that, I'm sorry um so I want to start from the proposition on page 30 of our brief. Uh it mentions that Kyle Gorman of O the Oregon Water Resources Department concludes that the the aquafer is declining here. And while that's important is on page 29 of our brief, it shows that the applicant here instead of focusing on what impacts would be on surrounding agricultural lands narrowed the study did not include our clients and the others that I mentioned at the outset and and focus on a very small study area with exempt wells. quite frankly um if you look to their own evidence page 689 which is an invoice and page 690 they're invoices for domestic wells and so again they're they're looking at an orange here when they should be looking at an apple and there's no analysis of how these 71 exempt wells sticking straws into the plateau will not have uh an impact on the adjacent farming activities for irrigation purposes. And with that, I'll Now further questions from the board. Uh thank you all for your oral argument today. That will conclude oral argument. The statutory due date for our decision and these appeals is May 9th. Uh we'll let the parties know in advance that we plan to issue our decision no later than May 16th.