Dept. of Fish and Wildlife v. Crook County

While a mitigation plan prepared for ORS 215.446 approval must be “concordant with the Mitigation Policy and not show any substantive conflicting elements,” the plan “need not follow the submittal requirements set out in OAR 635-415-0020(8).”

Solar Farm received approval of a modification to a recently enacted statute that provides standards regarding wildlife mitigation for counties to apply when determining whether to authorize mid-size solar facilities. The Oregon Department of Fish and Wildlife (ODFW) petitioned the Land Use Board of Appeals (LUBA) for review of the county’s decision, arguing that the county court improperly constructed ORS 215.446. Specifically, ODFW argued that the plain language of ORS 215.446(3)(a)(C) requires a mitigation plan that is consistent with all the Mitigation Policy’s provisions. The Court determined that while a mitigation plan prepared for ORS 215.446 approval must be “concordant with the Mitigation Policy and not show any substantive conflicting elements,” the plan “need not follow the submittal requirements set out in OAR 635-415-0020(8).” The court concluded that “[w]ith a construction of ORS 215.446 that correctly reflects the legislature’s intent,” LUBA erred in its construction of ORS 215.446. Reversed and remanded.