Oregon Department of Fish and Wildlife v. Jackson County

Merely referencing ASC 90-1 and wildlife impacts is insufficient to give the county fair notice of a specific issue.

The 1,373-acre subject property in northern Jackson County is split-zoned Exclusive Farm Use (EFU) and Aggregate Resource (AR). Intervener sought to rezone 435 acres from EFU to AR and add 324 acres to the county’s inventory of significant aggregate resources. The land lies within designated sensitive winter range for deer and elk, a protected Goal 5 wildlife habitat. Under Goal 5 rules, the county must identify conflicts between aggregate mining and other resources, determine if they can be minimized, and, if not, conduct an ESEE (economic, social, environmental, and energy) analysis. The county previously approved part of the site for AR use in 2006 based on a 1995 ESEE analysis. In 2023, intervener applied for expansion, which petitioner opposed due to impacts on wildlife habitat. The planning commission recommended denial, but the board of commissioners approved the rezoning, finding conflicts with wildlife habitat could be minimized with conditions and relying on the 1995 ESEE analysis to allow mining. Petitioner appealed.

First Assignment of Error 

Petitioner argued the county failed to apply approval criteria in JCLDO 7.1.1(C) governing development within the ASC 90-1 deer and elk habitat overlay. Intervener responded that petitioner never raised this issue during local proceedings, so it was waived. LUBA agreed, explaining that merely referencing ASC 90-1 and wildlife impacts was insufficient to give the county fair notice of the specific issue. Because the argument was not properly preserved, the issue was waived and the first assignment of error was denied.

Second Assignment of Error 

The county found conflicts between aggregate expansion and the ASC 90-1 deer and elk habitat but concluded they were minimized by conditions of approval, so no new ESEE analysis was required. Petitioner argued the findings were inadequate. LUBA agreed, holding the county failed to first specify predicted conflicts with wildlife habitat, as required by OAR 660-023-0180(5)(b), before concluding they were minimized under (5)(c). The findings addressed noise and dust but not habitat loss or displacement identified by ODFW. Because the county did not properly identify conflicts, its minimization findings and reliance on the prior ESEE analysis were inadequate. The second assignment of error was sustained in part, and remanded.

First Contingent Cross-Assignment of Error 

Intervener argued the subject property was not within the ASC 90-1 deer and elk habitat overlay because the Goal 5 Background Document’s narrative description of the Big Butte Creek Unit excluded lands draining into Reese Creek, such as the property. The county’s decision contained only a conclusory statement that the site was within the overlay. LUBA held that the board of commissioners’ interpretation of the comprehensive plan was plausible: the term “encompass” in the text was inclusive rather than exclusive, so the narrative did not conflict with maps that clearly included the property. The first contingent cross-assignment of error was denied.

Second Contingent Cross-Assignment of Error 

Intervener argued that aggregate mining is not a conflicting use with deer and elk habitat because it is not listed as such in the county’s comprehensive plan. LUBA disagreed, holding that OAR 660-023-0180(5) requires counties to identify conflicts with all acknowledged Goal 5 resources, not just those listed in the plan. The second contingent cross-assignment of error was denied.

Decision remanded.