Central Oregon Landwatch v. Deschutes County

Under OAR 660-023-0180(5)(a), a petitioner must establish that “factual information indicates significant potential conflicts” with agricultural practices such that the 1,500 foot impact area under the rule should be enlarged.

Central Oregon Landwatch (Landwatch) appealed the county’s decision approving the construction of a basalt mine. In 2006, 4-R Equipment, LLC applied to have a 385-acre property (subject property) placed on the county’s inventory of mineral and aggregate sites, and to rezone the property to Surface Mining (SM). The county’s decision was remanded three times in order to consider an expanded impact area (beyond one-half mile) and to determine possible conflicts with agriculture in the area. On the third remand, the county explained that the applicant had clarified that the mine would operate year-round, a departure from LUBA’s understanding that the mining operation was to be limited to November through February. Landwatch appealed, and LUBA reviewed the case for the fourth time.

Landwatch first argued that the county, following LUBA’s third remand instructions, erred in finding that a change from a mine that only operates November through February to a year-round mining operation does not result in a “modified” application under Deschutes County Code 22.34.040(B), and that a new application should have been required. LUBA concluded that the issue was not within its scope of review under ORS 197.835(3) because the issue should have been raised before the local government. Landwatch’s second assignment of error challenged the county’s decision not to expand the impact area beyond one-half mile from the proposed mine as unsupported by findings based on substantial evidence. LUBA denied the assignment of error because it found that the critique of the evidence that the county relied on was not sufficient to determine that the county’s decision was not supported by substantial evidence. The third assignment of error, regarding the mines impact on sage grouse leks, was determined to be too speculative to establish that the mine would conflict with agricultural practices in the area, and was denied. AFFIRMED.