2025-047/048/049 Gould et al v. Deschutes County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=nFeDbSi3KiQ). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.

the impersonal arguments very much and this room was just uh renewed with all of its systems so we're still learning it as well. So I apologize for that delay and technical difficulties. Good morning. Are we rolling? Good morning. This is the time set for 049 Gould versus Dashes County. I'm board chairs Moodio. Board members Basham and Wilson Wilson are also with us today. I'm not aware of any pending motions. Is there anything that the parties need to bring to our attention before we begin argument? Nothing from the parties. Okay. Uh please be aware that this oral argument is being recorded and livereamed. The board has allowed overlength oral argument in these appeals and petitioners and intervenor petitioner have a total of 40 minutes and may reserve up to 10 minutes for rebuttal. Have you decided how you'll share your time? >> We're going to do 30 minutes 15 minutes each among the petitioner and intervenor petitioner and then uh 10 minutes on rebuttal also split. >> Okay. >> Each. >> Thank you. >> Yes. Council, did you have anything to add? uh only with the with the podium here. Does the board prefer that we stand sit or do you have a preference? >> The recording will be better if you are speaking into the mic at the podium. So, uh our preference would be that you approach the mic. If you are not comfortable with that, I think the mic is movable and you can take it to your table if you prefer, but I think for the record it'll be clear if the parties approach the mic. Um and respondent interviewer respondent, you also have a total of 40 minutes to share. Have you decided how you'll share your time? >> Um yes. Good morning. Stephanie Marshall, uh, senior assistant legal counsel for Dashuites County. Um, I will be starting with approximately 10 minutes and the remainder of the time will be taken by the applicants representative. >> Okay. And I will keep track of time up here, but I also ask that the parties um, keep track and are aware of your own time as it passes. And uh, with that, whomever will start for petitioners, please uh, or interveneers petitioners, please come up and state your name for the record and begin. May it please the board. Josh Newton appearing on behalf of the Confederated Tribes, the Warmst Springs Reservation of Oregon, intervenor petitioner in these appeals. With me at council table is my colleague, Ellen Grover, and we have some client representatives that I'd like to briefly introduce here today. First, we have the chairman of tribal council, Dennis White. We have in the middle the uh general manager of the branch of natural resources for the tribe, Austin Smith Jr. and we have a tribal councilman uh Raymond Moody here with us today. >> My intent is to deliver remarks for up to 12 minutes unless interrupted and leave time for questions, but I certainly welcome questions. The trib's appeal principally concerns remand issue number three as defined by the county. Before the remand hearing, Dashuitz County issued two notices of public hearing describing the issues that luba had remanded. Both notices told every party that remand issue number three was quote whether the 2022 fish and wildlife management plan violates the treaty with the trib's middle organ dated June 25th, 1855. The parties prepared and argued that issue. County's final decision, however, described its task differently. It stated that it was not asked to adjudicate the treaty. Those two descriptions are difficult to reconcile and that inconsistency explains every error that followed, including first the county's refusal to reopen the record, and second his failure to identify or apply the governing treaty standard. For those reasons, the decision should re be remanded the county for further proceedings. I intend to make three points here today. One, the county never identified and applied the governing treaty standard. Two, deciding whether this approval complies with the treaty is not the same as adjudicating the treaty generally. And three, once Luba remanded, the evidentiary opportunity described by the court of appeals became part of the remand proceeding. Turning to the first issue, the county never identified and applied the governing treaty standard. Here the chronology is straightforward. Court of Appeals held that the tribe preserved its argument that the county was required to consider the 1855 treaty in determining whether the plan satisfies the county standard. It therefore remanded to Luba, the issue of Luba for reconsideration on the merits. Luba then remanded to the county because the county was obligated to make findings addressing the preserved treaty issue. The county's notices of public hearing accurately reflected that remand. And as I noted, they informed every participant issue number three was whether the plan violates the treaty. That is the issue upon which the parties prepared argument and participated in the remand. The difficulty is not merely that the county described remand differently in its notices and its decision. The more fundamental problem is that the county never identified the governing treaty standard before concluding that the plan complied with the treaty. Instead, the county treated treaty complied compliance with its local nonet law standard as sufficient to establish treaty compliance. It's not the analysis remand required. Secondly, determining whether the approval violates the treaty is not the same as adjudicating the treaty. The county's premise is mistaken. Tribes never argued that the county was required to define the full scope of treaty rights under federal law. Nor did the court of appeals. As I have explained, the court of appeals held the treaty issue was preserved and Luba remanded because the county was required to make findings addressing the issue. that required the county to determine whether this land use approval complies with applicable federal law, which here is the treaty. This is a familiar function of local governments in Oregon land Oregon land use planning. Local governments routinely determine whether land use approvals comply with applicable federal law when those questions are properly presented. For example, local governments evaluate compliance with Fair Housing Act, Americans with Disabilities Act, and the constitutional limitations where those authorities bear on the approval for them. Those are compliance determinations. They're not abstract adjudications of federal law. The same is true here. The county was not asked to resolve every question that could arise under the 1855 treaty. It was asked to answer the question identified in its own notices of public hearing. Whether the plan violates the treaty, this is a project specific compliance determination is fundamentally different than a comprehensive interpretation of the treaty. But there's another problem. Even assuming the county understood that it was required to determine treaty compliance, it never identified the governing treaty standard. The trib's position has consistently been that the treaty protects harvestable populations of treaty protected fish. That requires analysis on a species specific basis because a treaty protects individual fisheries, not to an aggregate concept of habitat. The county never addressed that standard. Instead, it concluded that overall finding of no night loss to habitat necessarily established treaty compliance. that substituted the county's local standard for the remanded treaty inquiry. Instead of answering the question, the county concluded that not been asked to adjudicate the treaty. It simply sidestepped the issue. Respectfully, that re reframed remand into a question that no party, no prior tribunal had asked it to decide. In so doing, the county created a false choice that assumed either must comprehensively adjudicate the 1855 treaty or need not consider the treaty at all. The remand required neither. It required the county determine whether this Turning to the third point, once luba remanded, the court's remand instructions became operative. The applicant argues the court's discussion of additional evidence is dictum. Respectfully, the argument overlooks what actually occurred. court assumed Luba might remand the treaty issue to the county and Luba did exactly that. The condition identified by the court was therefore satisfied and the court then explained what the remand proceeding would include. It would include it would quote the court stated remand quote will allow an opportunity for the tribe to present evidence of indigenous expertise and knowledge. The county refused that opportunity. Instead, it closed the record to the treaty issue. It then relied on the resulting absence of evidence to conclude that the tribe had failed to establish impacts treaty protected fish resources. And this is the procedural trap that the tribe has identified in its briefing. The decision maker cannot deny the party a party an opportunity to present evidence, criticize the resulting absence of evidence and then rely on that absence as the basis for rejecting the claim. The remaining errors all flow from the same mistaken premise. Once the county concluded it was not required to identify and approve the governing treaty standard, it first refused to conduct the remand proceeding contemplated by the court of appeals and luba. It denied the tribe the evidentiary opportunity that the remand contemplated and never decided the treaty issued. Instead, the county relied on a mistaken argument of waiver offered by the applicant, burden shifting, and its local no net loss analysis to avoid applying the governing treaty standard and deciding whether the plan violates the treaty. The county relied on future review to establish present compliance with the treaty. Those are separate assignments of error in the trib's briefing, but they all stem from the same legal error. The tribe never identifi I mean the county never identified and applied the treaty standard that Luba reped it to decide. At this point I wanted to talk briefly about the issue of this is did the tribe raise that this is a treaty specific or a species specific standard. Tribe raised this in its intervenor petitioners brief and it was never addressed by applicant or county in any of its briefing. We would direct the board to footnote 16 in the court of appeals decision because it succinctly summarizes the trib's position and why the tribe is here. Why does this matter to the tribe? Court of appeals said the tribe asserted before Luba that his treaty protected fishery right is a resource that is at risk of potential loss or degradation as a result of Thornberg's project which relies principally or primarily on groundwater withdrawals. Those withdrawals the tribes assert the tribe asserts will drain aquifers underlying the project that have connectivity to surface water flows to the continued survival at risk fish species in the Dashuites basin. The tribe doubts Thornberg's proposal to mitigate those negative impacts by buying or cancelling existing water rights elsewhere in the basin will sufficiently ensure that there will be enough water for fish to survive in nearby streams and to ensure water flow and temperature will be sufficient to allow harvestable numbers of at risk species of fish to survive at the trib's usual accustomed fishing places during proper time of the year. The tribe asserts that the latter is necessary to sustain the fishery resource fulfillment of the trib's treaty protected right to that resource. There can be no doubt based on this record that the tribe has been focused at the species level in the 2023 proceedings at luba in 2023 at the court of appeals and again on rebound. The waiver argument simply became a way for the county to avoid applying the appropriate treaty standard to ascertain whether the plan that it was being asked to approve violates the treaty. In conclusion, this appeal ultimately proves presents one straightforward question. Before the hearing, the county told every party that Luba had remanded the on the following issue. whether the plan violates the treaty. The county's decision, however, never identified the governing standard. It instead relied on record closure waiver burden shifting in its own local standard to avoid deciding the issue >> [snorts] >> For those reasons, the tribe respectfully requests the board remand the decision with with instructions to the county to reopen the record to provide the evidentiary opportunity contemplated by the court of appeals and determine whether the plan violates the treaty under the proper treaty standard. Thank you. Happy to answer any questions. >> Uh yes, thank you for your argument. Uh my question my first question is is your argument to was your argument to the county and is your argument to us that the treaty right applies as an overarching federal law with its own independent standard or is your argument that the county is required to apply the county noet loss standard in light of the treaty protected fishery resource. Our position is has been and continues to be that the county can't take action that violates the treaty. >> Is the mechanism through that the treaty as its own overarching law or is the mechanism the no net loss criterion? Our view for this particular application um would be excuse me getting over a cold so I'm but our view for this particular application is the county has to evaluate its local land use standard in a manner that complies with the treaty. We understand that in 2010 the court of appeals determined absent a treaty protected resource the no net law standard can be applied on a systemwide basis. The trib's position is if it comes forward and says there are treaty protected fish resources that issue they have to be evaluated on a speciesbye basis. So they >> through the no net loss standard not as an independent criterion. >> That's right. >> Thank you. And other than the court of appeals decision, is there a legal basis requiring the county to reopen the record on remand independent of the court of appeals decision? >> Our view is that the county code that says that the county has to comply with the instructions of the court of appeals and LUVA would provide an independent basis for that. I think it's >> okay. And was there was there a sustained uh failure or delayed notice procedural error in the prior appeal at Luba or the court of appeals? >> Yeah, so the tribe took the position um in the prior before Luba in 2023 and at the court of appeals. uh and this is uncontested that it was not provided notice of the land use application and didn't become aware of the 2022 application until after the denovo appeal had been appeals had been filed with the board of county commissioners. So the tribe was deprived of the opportunity to participate in the hearings officer process in [clears throat] the fall of 2022 and really had the opportunity or became involved late in the process due to lack of notice. That appeared to resonate with the court of appeals. Court of appeals I think is saying the tribe ought to be able to introduce evidence that it alleges it was deprived of introducing during the prior proceedings. So my question is was there a procedural error uh articulated and sustained? >> No. >> So absent that why is the court of appeals statement not dicta if there's no underlying procedural right? Why is what the court of appeals what they assumed might happen not dicta? Yeah, I think that is a good question and I think importantly I think the way to think about dicta the way I think it's appropriate way to think about dicta is dicta generally applies when third parties are relying on a decision for judicial precedent as opposed to instructions that the deciding tribunal is giving to the parties for future proceedings in that >> what gave the court of appeals the authority to give that instruction if not there being some underlying procedural right. >> So even if even if the county's correct that they absent that language they would not have had to reopen the record. It's your position that that in your your view instructions the county's view dicta that changes the game and now they do have to open the record even if they didn't have to before. >> That's that's correct. A and and one thing to make clear is we when the once the record wasn't reopened the tribe accepted that for purposes of the remand and said okay this is the this is the choice the counties made at applicants urging. So we looked at the existing record and we asked does the existing record meet the treaty standard and in that circumstance we identified gaps in the evidentiary record that shows that even on the information that applicant had provided they didn't consider all the treaty protected resources. They didn't look at this on a species by species basis. So the record itself is wanting it cannot meet the treaty protected standard because at the time that record was created the county and applicant were taking the position that the treaty issue had not been properly raised to the county. >> So even I'll finish up on that. So even if um so even if the court did make an incorrect assumption that the record had to be reopened um is your position that the county should have they should have appealed that to the court of the Supreme Court if they didn't want to reopen the record? >> Yes. >> Okay. Thanks. >> And I I don't want to eat into my to Miss Regger's time anymore. >> Yeah. We would like to ask some follow-up questions, please. Or you could eat into your rebuttal time or you could stop now and not answer further questions. It's up to you. >> I can answer if it's okay. But yes, >> uh where was the species by species argument raised in the initial proceeding? So why would the applicant or the county have known that this was the framework that the tribes were asserting so then to have made findings or presented evidence on that? >> Yeah. In our footnote number two, in our reply brief, we give the record citations for that. And specifically, we reference the trib's petition for review before Luba in 2023. Um, and it's it's the original record 1065. And I can read that exactly what what we say. This is what I think Court of Appeals looked at and nobody challenged. It's on page 37 of our petition for review. Yeah. The original or amended amended record 1065. We say the board of county commissioners cannot conclude as a matter of law that systemwide benefits, whatever that phrase may mean, satisfy the no net loss standard without expressly finding that the plan does not violate the treaty or an Oregon statute. The statute mandates that counties site destination resorts in a manner that's compatible with sight and adjacent land uses requiring among other things that important natural features including habitat of threatened and endangered species be retained. The habitat of ESA listed species is thus not funible and cannot be netted against habitat of non-ESA listed species. Similarly, habitat for fish species protected by the 1855 treaty cannot be sacrificed or traded for other benefits. Nothing in GU 6, which is the 2010 decision, requires a contrary result because the court of appeals was not required to construe the local standard in the context of the 1855 treaty. >> And you're quoting the petition for review in the prior appeal. Is there anywhere in the local record in the prior appeal where that is cited? And is that where you're pointing me to your footnote 2 sites to those places in the local record? In our footnote two, we cite to footnote 16 in the court of appeals decision. In our petition for review, we cite places in the original record where the tribe was focused on a species by species basis. In the in the information that we provided in support, so there were three letters that were submitted by Mr. Smith and he talked about treaty protected fish resources specifically mentioning steel head and and salmon. But the supplementary information that he provided, including the fish passage plan that is was adopted as part of the Pelton project, goes through in excruciating detail the the fish species that are to be reintroduced uh into the upper dashoot space. >> So your argument just responsive and I'm not trying to rush you. I just want to make sure we have enough time. Is that >> that holistic submission arguing about species by species should have put intervenor and the county on fair notice that the tribes were asserting under the treaty requires a species by species analysis under the no net loss standard notwithstanding the prior decision saying it's a habitat analysis. >> That's right. And and one final point and then I will lead. We do believe that applicant in particular is conflating issue preservation with argument preservation. There's a there's a there's a duty to preserve the issue that has been determined by the court of appeals for purposes of these proceedings. We preserve the treaty issue. The arguments about what the treaty requires. There's no statutory requirement that you come up with every argument. We've made the arguments on a species by species basis. It's the only fair reading of the record. And now the county by its own determination says it needs to determine does this plan violate the treaty. How can it do that without determining what the correct standard is? Thank you. And you're at about 21 minutes right now. So just for your awareness and for My name is Jennifer Bger. I represent petitioners Gulib, Bishop, and Lipgum. The county gagged the petitioners in the public in this remand proceeding. The problem started with the county deciding to accept applicants extra record evidence via improper exparte contact to determine the scope of the remand and what the notice of remand would include, which is well briefed by Bishop. The problems continued with the remand notice and the decision to keep the record closed on compliance and treaty matters. The public's voice was further restricted upon entry to the hearing when members of the public were met by staff and this message on a giant poster with incorrect warnings that certain testimony would be prohibited. If Luba looks at the county's marked ER1 through2, staff member Will Groves actually use the word policing as a means to intimidate members of the public and restrict the due process opportunity of petitioners and the public alike. The restriction on public participation was made both as to the economics issue which included new evidence that the general public had never had a chance to respond to and the treaty issue which the county failed to consider in the first goaround. Notwithstanding these procedural errors that unlawfully and unnecessarily chilled public participation, the county did not enforce its rules against the applicant's improper submitts, namely the new evidence that is the 2025 FWMP, which was submitted under expert signature. This submitt was not argument, but rather submitted as substantial evidence by the expert who had advised applicant on the FWMP since 2022. The 2025 FWMP stamped and signed by applicants expert came in as part of the remand on a closed evidence record that the applicant requested. Between the GU brief and Bishop brief, it is obvious that the submitt of the 2025 FWMP was improper. Nevertheless, if Luba were to rule the submitt was valid, the 2025 FWMP represents the collapse of applicants house of cards. In Luba's 2024 final order, Luba held that mere submittal of applications to OWRD was insufficient to demonstrate compliance with groundwater mitigation requirements. At petitioners ER8, the county decision acknowledges its understanding that ownership and cessation is not enough with OWRD application submitting quoted CTWS LUBA 64 to 65. Thus, the county understood that even with all three, including OWRD involvement, there was not substantial evidence without OWRD approval. The new 2025 FWMP is unresponsive to Luba's order. Instead of requiring OWRD review and approval, the applicant now makes OWRD's involvement optional. This does not satisfy Luba's remand order which expressly held the ownership or assignment of a groundwater right and sessation of pumping a groundwater right alone could not meet the county's requirement that any negative impact on fish and wildlife resources will be completely mitigated so there is no net loss or net degradation of the resource that is the no net loss degradation standard >> I have a question about the what you're calling the 2025 FWMP What part of that is new evidence? >> Well, the entire thing, if you look at the front page, there's multiple stamps. This is ER39. It's stamped in um 5126. It sorry, it's dated the dates on the bottom. The last date is May 5th, 2025 as part of the remand proceeding. >> What part of the substance of >> then you go to the section? I understand your excuse section D. >> Excuse me. I understand your argument that the submission and the stamps by the professionals makes this something that is submitted for new evidence. But what part of the modifications is new evidence as opposed to say a modification of the decision itself as in something like new findings. What makes it new evidence? because it's being presented for the first time. The compliance standard for groundwater is being provided for the first time to the public as a new means of meeting no net loss and it's allowing the applicant to say that the FWMP has written means different things now that cross references for existing groundwater rights that would comply with this very compliance mechanism were already resolved which they weren't. Bishop raised that below about the Dutch Pacific water right. Luba nor the court of appeals made any distinction between future or current named groundwater rights. Both said the compliance mechanism doesn't meet the no net loss standard. And so we're we think that Luba should be puzzled about why we're standing here again arguing about the mere ownership and sessation of use. I I have in my thinking I'm separating in two ways. So the first assignment of error or one of your assignments of error is saying the 2025 the modifications to the FWMP themselves are evidence for which petitioners were entitled to submit contrary evidence. Intervenor respondent's position is it's a modification of the compliance requirements that itself is not evidence. What would be submitted in response to that that was not was not able to be submitted counter evidence that those compliance mechanisms are not will not meet the no net loss standard is that >> yes there's all kinds of things we could say about current water standards and if you look at ER65 which is their supposed compliance table this is dated December 31st 2024 it has a lot of information about what the applicant purports to be the status of its water rights. The public had no opportunity to respond to this evidence. >> Okay. Thank you. Uh that answers my question. >> Sure. >> And then um lost my train of thought for my follow-up question on that. Oh, the different differentiation between the existing water rights and potential future water rights. I went back and looked at our decision and the court of appeals decision. It did seem to me that there was not a differentiation when we were looking at the initial compliance provision. My question is on the facts in the record, are there any of those what our parties are calling existing water rights that have not been approved through an OWRD process that are now going to be considered um as existing without any OWRD review? And if so, which ones and where is that identified? That was a compound question, so I can go back and break it into parts if you need to, but do you understand what I'm trying to get at? >> Yeah, I do. And we have a table in the record. It's cited in our reply brief. Um, and it summarizes the water rights as of the original record. There are some new citations in there that were meant for purposes of the economics argument, which was open to new evidence. You can ignore the new citations and still understand that no OWRD approval for these water rights is available. They're all pending or have been denied. So or they're up on appeal. So there is no final analysis, no final determination for many of these named rights. That's why we challenge the Dutch petition. >> So the table that you're referring to, >> I'll get you the number of the of the page on rebuttal. >> Okay. And is that appended to your petition or is that just in the record? >> It's in the record and it's cited in the briefing through cross references. So, >> and just for clarity, is your position that none of those what are called existing rights have been through the OWRD process to a final conclusion or is are there some have and some have not? >> I'm going to look at it myself and I'll give that to you. >> Thank you. I appreciate that. Go ahead. And you're almost at 30 minutes. So if you were wanting to reserve 10 minutes for rebuttal, we are upon that time. But go ahead. >> I'll just say that the compliance issues notwithstanding that we've well briefed the economics issue. You're really familiar with the substantial evidence test. I do want to say that there are grounds for re reversal here. This is coming to you under DCC 223404, the county's remand process. It has its own language about substantial mitigation modification that requires a new application. And it's clear that the applicant is so confused and its experts are so confused that it can't get it right. It's time to start again and look at these issues under current conditions. The tribe just told you they're concerned about their treaty. The public is concerned about wells. It's concerned about the environment. and it's concerned about sagebrush subdivisions and watering golf courses in the high desert in this drought >> Questions? Okay. Thank you. You'll have uh intervenor petitioner. Petitioners, you'll have nine minutes to share for your rebuttal and we'll have the county please state >> Go ahead. >> Good morning. Stephanie Marshall, senior assistant legal counsel representing Dashuites County in this matter. Um I'm going to limit my remarks to uh hopefully less than 10 minutes um merely addressing the procedural arguments. Um I've heard that there have been some questions um of the intervenor petitioner and petitioner on these matters. Um, so I in in our brief we addressed the claims of exparte and bias and uh also touched on the new evidence argument and I'm going to be deferring to the applicants attorney on that one and then the uh goal two argument on public participation. Um uh briefly stated oh shoot it just vanished. um briefly stated uh the claims of exparte uh regarding a letter that was submitted by the applicant. Um that letter actually followed a letter that was submitted by the tribes. Uh pardon me. Uh the letter was received on a Friday and was uploaded the following Tuesday in advance of the publicly noticed uh board of commissioners meeting. um and it was included on the agenda as to what the matter was discussing um at that time and we enclosed portions of the transcript um or quotes from the transcript in our brief. Um there was quite a bit of discussion as to a the remanded matters um issues and b the short uh 120day clock for um for making a decision on remand. >> Was petitioner Bishop permitted to comment at that meeting? I believe that they were permitted to comment. The the meeting uh opened as it always does with a threeminut um opportunity for anyone in the public to come up and make a public comment to the board. Um so I don't know if that answers your question sort of, but I'll I'll think of a follow-up [laughter] question if anyone I I'm trying to figure out. I think the county's position is it's not exparte and even if it was it was disclosed and so petitioner bishop had an opportunity to rebut it or to challenge it. And so I'm trying to sort out what's the county's position on when petitioner Bishop had that opportunity. It sounds to me like what you're saying is they would have known about it and could have commented on it at the start of that work session. Is that what you're saying? >> Yes. And it was a public meeting, not a work session. Um, and and the decision was made actually at the following meeting when they entered the order. I don't have the order number off the top of my head. >> So, just for the record, so we can keep these dates clear, my understanding is that the email from the applicant was sent to the board of commissioners. The county posted that on April 15th and then there was a meeting on April 16th. Then the county's position is Bishop could have known about it to then make that comment at the outset of that meeting. >> That's part of my answer. The other part is that the decision on reopening the record was made at a subsequent meeting and and moreover throughout the entire process >> and what was the date of that subsequent meeting and was that meeting open to public participation? >> Every single meeting at which any of these procedural or substantive issues were discussed were open. There was not a single closed meeting or a secret meeting or anything that was taken any action taken behind closed doors. Um, and I don't know I had I had my brief up which >> if it's in the brief I'm sure I can find it in the brief. >> So the the position is letter was disclosed petitioner bishop had opportunities to challenge the contact or rebut the content of the contact. Correct. Correct. And uh my other point is that it was not substantive. It was really a question of like what [clears throat] all do you want to take evidence on? There are three issues that have been remanded. Um and we've got these one, two, three. And uh my understanding is the applicant said we only need to present evidence on the economic issue. And the applicant has the burden of proof. Um and so their argument was let's just limit it to that. Um and then the board has the discretion and kind of jumping ahead a little bit to some of the questions um the board asked earlier of um intervenor petitioner >> just to stay on the scope of the remand issue you're making attempting to make a differentiation between the substance of the criteria and a procedural decision whether to reopen the record. Is there any legal authority for finding that exparte contact does not include deliberation about a procedural posture that could have an impact on substantive rights of a party? >> No. >> Okay. Thank you. Continue. >> Right. Um, so, uh, the next point I was going to make was because the matter was not remanded to the county for any procedural issues, any goal two issues or any, uh, you've not allowed enough public participation. It was entirely within the board's discretion as to whether to accept evidence on all, none, or one or two of the issues. Um, and I've briefed that as well. Um turning to bias, it's a very high standard to establish bias. Um again, I think that the transcripts uh speak for themselves. There was robust discussion around um you know, a how long the application has been before the county, uh references to numbers of binders, etc. And at the end of the day, um it was probably most compelling the fact that there was only 120 days on remand. Um the rooms were filled with with people that were there to participate to witness. Um the allegation about chilling public participation. Um I you know I'm not here to testify but you know there was ample uh and and robust public uh people in the room and um the evidence was uh limited new evidence was limited to the economic issue. Um and then uh the last issue, yeah, I mean I I've I've pretty much covered uh both goal two and um and also the exparte claims and bias. I don't believe that there's any bias that's been established under the high uh the high uh statements that have been made like uh compelling people to vote a certain way. Um it was really kind of a a statement of we have so much and and shall we take more? I don't think we need to take more. And ultimately the applicant has the burden of proof. Um [clears throat] and then the final note that I wanted to make on goal two is that um the I I wanted to distinguish once more the link uh decision link versus city of talent. um in that case the applicant had modified the proposal and submitted new documentation in support of an admitted application. We did not have that here and and I I was just hearing the the questions that um that you all had for um for the appellants attorney and I will have Mr. um Mr. Gosh Katzarov [gasps and laughter] Mr. Mr. Kro on behalf of the applicant will will further delve into why the FWMP um is not new evidence. So I'm not going to try to address that specifically. Um but if you have any other questions of me on procedure, that's what I'm covering today. And thank you very much. No questions from the board. Thank you for your argument. >> Thank you. Awesome. Uh, good morning board members. My name is Ken Katro and I'm attorney uh a Schwabi Williams Senator Wyatt and I'm here on behalf of the intervenor respondents. I'm going to try to say applicant, but I might say resort or Thornberg. Um, a lot of stuff going on here. Um, before I kind of get into specifics on each assignment of error, I think it might be helpful to kind of uh go through an overview of what the fish and wildlife plan is, how it works, how we got here, because I think that there's a some significant confusion um on a couple of things. Um first as this board I think is aware uh the resort was essentially uh approved as part of its final master plan in 2008. Grab my water. Sorry. As part of the final master plan approval uh the resort had deferred compliance on this no net loss standard um and adopted at that point in time the 2008 fish and wildlife mitigation plan. Um at least one board member here today was present at the same time as that. Um, and what's interesting about that particular plan is it was substantially worse, quite frankly. Um, there's no argument from any of the parties that the 2008 plan is any better than the 2022 plan or what now has been deemed by petitioners as the 2025 plan. Um but what's interesting is is that that plan um authorized Thornberg to offset its pumping of up to 2100 and plus acre feet of water uh through a series of measures uh that were mostly surface water. So COD Central Oregon Irrigation District water um and a particular right from Big Falls and so it provided surface water mitigation for groundwater impacts. It's not actually quite a a a good idea. And in fact, that plan was found to meet the no net loss standard despite the fact that there was a quality degradation of the resource of 0.1°ree Celsius. Doesn't seem like a lot, but it that kind of measurement actually can matter to fish. And so what we did as part of this process was listen to the public and say you don't want golf courses, you don't want as much water use. And so we're going to reduce water use by about a third um and cut uh a golf course and provide some other conservation measures which aren't material um and instead cut the water to a maximum authorization of 1460 acre feet of water. So 30% reduction of water. We're also going to look at how we provide mitigation for that. And so we provide cold seeps and springs water generally from groundwater sources. There's some that's not um but generally then provide uh cold water that get into the system. There's two really big points that have to be made to understand the plan. The first is that the shootutes basin is hydraologically connected for the most part. Uh there's a very robust aquifer uh millions of gallons of water each year is recharged. There is a drought. However, that has not impacted the aquifer and the groundwater that has impacted somewhat surface flows and with particularity uh irrigation district storage reservoirs. And why this is important is that what this record establishes and this gets to a couple assignments of air later about why can't a junior water right holder just pick up this water. But what this record establishes is that OWRD has never, not once, never um uh regulated off somebody who is using a groundwater right or live flow right. So this this idea that there's not enough water and that somebody else can just pick it up is simply not true. There's evidence directly from OWRD in this record that says that. Um, but we have this hydraologically connected aquifer, which means everything that you pull out from groundwater later would have flown into either the Shoots River or the Crooked River, generally north and or northeast of where the resort is. So, that's the that's the first thing. Everything's hydraologically connected. The second thing is that what this plan is designed to do is to mitigate Thornberg's impact of pulling water out of the ground out of groundwater. Okay? And what that does is then um Thornberg can't pull out any water at all. Period. Thornberg can't pull any a drop of water out of the aquifer unless there is an OWRD approval or authorization to do that. Meaning unless OWRD approves something, we can't uh pull a single drop and there is zero impact. Okay? So that's a overarching thing. If we don't use any water, there is zero impact. Period. Okay? Now let's get to how do we quantify our impacts? And so what we did is we used the two best models that exist. USGS's uh GS flow and EPA's Qual 2K. So one of those deals with water flow, quantity of habitat and water. The other deals with quality and temperature. And so we took uh if if you imagine a plane here and and Thornberg sticks a giant straw on the ground and it pulls 1460 acre feet of water out for decades, you create this zone of depress or cone of depression. Okay? And that pulls water that otherwise potentially would have gone into the Dutus River, the Crooked River. And we said, "Okay, now we know exactly what the impacts are if Thornberg is pumping its maximum allowable right for decades. We know what the static impact is on habitat quantity and quality no matter what." And then what we did is we looked at this suite of water rights that's found in section B of the FWMP. It's I think six different things. They said, "Okay, if instead of using those rights in the places that they're currently uh a pertinent to or appropriated from or we cut off their straws, what impact does that have?" We said, "Okay, well, if we cut this straw here, well, that that water flows in there. If we cut this straw here, then it flows in there." And so what we found, what the experts found in dozens of technical reports that were analyzed during the last process and could have been analyzed by everybody else in this room or every petitioner is it said okay if you take all of those measures you meet the no net loss standard you have no negative impact in fact what the uh biologist uh said and I didn't the right one was essentially that in all reaches of the river you have a net benefit sorry appear to be a net benefit for both fish quantity and quality at all sites evaluated and will result no net loss for habitat quantity and quality. That's all reaches of the river. Um and so that's important and that's all throughout the plan. There's several other places in this plan that say um and I can cite you right to him er 58. More importantly, the FWMP has accounted for the maximum amount of of pumping that could occur of 1460 acre feet and is providing mitigation that meets or exceeds no net law standard. There's multiple examples of that in this plan that quite frankly weren't appealed in the last goround um and yet we're still talking about it today. So the second part that's really interesting or really that needs to be understood and it's been very much confused is that suite of water rights uh represents about 1300 acre feet of water and yet it mitigates for 1460 maximum pumping. Okay. And the reason it does that is we've talked about OWD having this overarching umbrella in the Dashuites basin. In order to use a drop of water you have to mitigate on a onetoone basis. If we want to pull a drop of water out of the ground, we have to put back a drop. Okay. However, for no net loss fish mitigation to show that there's no impact, we've done it with this suite of rights already. Okay. And that's what all of the science says, the plan says that was not upset on appeal. Okay. However, we have a problem as the resort. We have a slate of uh water rights or credits. That 1300 acre feet that I was talking about also includes a TSAD mitigation project that's already completed. But in terms of what the resort owns, it's about 1,200 about just above 1,200. And assuming OWRD lets us to lets us use all of that water for mitigation, that still leaves a supply gap. Thornberg has a supply gap of about 243 at least acet of water. And that assumes we have full buildout, which could take decades, um, and that we are pumping that full amount of water. It may never occur, but right now we have a supply gap. That's what the quote compliance measures um deal with is how do we qualify what rights we can use for supply. It has nothing to do with the no net loss fish mitigation standard, which means quite frankly it's irrelevant. At worst, it's it's harmless error. So what did we do on remand? Because this is really important. What we recognized was that Luba and the Court of Appeals was concerned with particularity of actually providing fish water. So what we did is we took the science, everything that was in the record um and that wasn't challenged and wasn't upset on appeal and said, "Okay, you have this suite of water rights and the suite of measures that meets the no net loss fish mitigation standard. Well, how do we ensure that that water is actually being put in the stream or left in the aquifer? And how do we let the public know that?" said, "Okay, we are going to adopt a new table that requires a uh water right by water right, time by time, when we're taking it, where we're taking it, etc." And that has to be reported to the county and to ODFNW. [clears throat] That was not a requirement before. There was a reporting requirement, but it was loosey goosey. Okay? And so instead, we adopted a specific table that deals with it. That's not new evidence. That's a criteria that we say, okay, we're adding this to try to meet our no net loss burden because people are concerned about whether or not we're leaving that water uh in the aquifer or not. This now specifically requires it. If you look at that table now, it says Thornberg is not pulling any water and yet it's currently providing that 1300 plus acre feet of water benefit. So, it's currently mitigating no net loss mitigation, fish mitigation despite the fact that it's not pulling any water. The second thing that we did and and that's essentially overlooked by petitioners. There's like I think one paragraph in their brief about the reporting requirements. The other thing that we did which is substantial in my opinion is we adopted a new condition condition 41. And what that condition says is if you change this mitigation, if you change it, we have to come back for a public process. That might not seem like it's a big deal. You're modifying the plan. You have to come back. But it is a huge deal because what this says is if OWRD doesn't allow us to use it for water mitigation for supply mitigation doesn't we can't change it. We can't just sell that water and try to get something new. That mitigation has to stay there no matter what unless we want to go through this whole process again which I'm not hopefully I'll be retired by then um if it ever happens. So I'm pretty young at least I think. Um anyway, so the point is is that there's overarching parts of this plan where Thornberg can't pull an a single drop of water without OWRD approval. However, it has already provided this suite of water rights that provides fish mitigation. And there's lots of language in uh the previous decision from that that recognizes that there is a difference in between supply mitigation and fish mitigation. There's also language from Luba and I'm looking at page 50 slip opinion of the decision. um in page 51 that says the county can and in fact did properly found substant find substantial evidence that this is providing fish mitigation and it it didn't require an OWD process. It instead looked at the evidence of pumping, evidence of use, all of those sorts of things that said there is wet water here. You're providing the mitigation. Again, that was not challenged these portions of the plan or uh and that finding was not upset on appeal. So, it's the applicant's assertion that a no net loss standard has been met by providing this water and that when we're talking about compliance, this is why I'm taking so much time on this. We are instead talking about the gap in supply future water rights. And that's what the plain language of the plan says. And if you look at the court of appeals decision, they also recognize it. They also talk about how this was in fact a supply gap that there this 243 acre feet um and that this relates to future water rights that are to be used for appropriation. That's what the plan says. I.e. for use. Okay. So those compliance measures have again nothing to do with no net loss fish mitigation. They instead talk about if we need to fill that supply gap, what we do to get those. And so Luba asks >> I have questions. You're going really fast and covering a [laughter] lot of information. >> A lot to cover in a little bit of time. >> I'm just going to reiterate the same question that I had to petitioners and I'm looking now at what is section B of the FWMP which sets out um a bunch of different certificates. I think there's like seven of those, maybe more. >> Six or seven. Yeah. >> Yeah. Are those have those all been approved by OWRD processes? >> We've included in our brief um a a table that discusses each one of these and where they are in that current process. Um again, what's what's more important is that that mitigation that what the experts have said and what wasn't appealed is that that water is there and and Luba made those findings actually that it would be reasonable for the county to determine based upon the pumping records etc. Even ODF and W except ac except >> did the compliance requirements that were challenged successfully challenged in the last appeal apply to those seven certificates or only to the gap water >> only the gap water and that's what the plain language of the compliance provision has always said is that for new water rights for additional water rights. Okay. So your argument to the county and the county agreed with this, your argument to us is it's already been decided that those seven certificates are adequant evidence that that water will be used for mitigation and that that decision is already settled. So that's not an issue in this appeal. >> Yes. But yes, >> we have added additional measures and that's the specific reporting requirement that goes on a water rate by water rate update by update which also includes us um having to to tell people what the uh status is of each of those rights and where it is in the process. But in the meantime, that water is still being placed in the aquifer. And even if OWRD never were to approve one of the actions, that water still based upon this plan has to stay there and we can't change it. >> Okay. And I'm I think I am being dense at this point, but I want to make sure that I understand. In your brief, you quote our prior decision where we say, "Given the record as a whole, a reasonable person could conclude that the water rights transactions proposed in the 2022 FWMP will result in no net loss to fish habitat based on quantities and quality of water modeled based on the listed water right certificates. And that is on your page uh 8 of Pinnacle intervenor response briefs in response to Gold's petition for review. And that's a citation to our prior decision at slip op 53. >> Did that conclusion depend on those proposed water transfers being processed and approved by OWRD? >> Absolutely not. >> Was that argued in the prior appeal? >> Uh whether or not it that those have to be uh required. >> Yeah. Or that they couldn't be that that couldn't be accomplished. the OWRD approval was required or that OWD approval couldn't be accomplished. >> Argued before because that Luba's finding in that on that particular piece related to Dashuites County well to our assertion in the previous proceeding that the county could just rely on water rate certificates as having the proper amount of wet water and and we said no we did a lot more than that. We provided substantial evidence of pumping rights etc etc used photographs yada yada yada and the county then determined that that was enough to show that that water existed. Luba didn't make a ruling based upon whether or not water rate certificates on their own were evidence of sufficiency for wet water despite the fact that that statute says it's conclusive. Um it what Luba did is it said we're going to look at the alternate findings which said we looked at all of the substantial evidence and it would be reasonable to conclude. >> Does that make sense? >> Yes. Thank you. >> Okay. Any more questions on this issue? Okay. Okay, so that kind of hits the compliance measures. Um, again, we plain language of the plan has always been that that's for additional water rights, the gap, the supply. I I'll say one last thing about this because it may or may not be relevant and it kind of gets to the tribe's third assignment of error, which is uh if we look at additional supply rights under these provisions, the tribe asserts that those have to go through their own no net loss uh review procedure. Again, we've already shown what the total impact of Thornberg is. And so if we if we find another right that uh the resort wants to purchase and stop using in a location, that just adds more water, okay, into the whole system. And if instead they use that for mitigation and they're drawing down, you know, Thornberg's uh cone of depression, it's the same impact. And so uh supply rights are it's a it's a different thing. It doesn't impact no net loss. um that has already been met. Um, additionally on that, just because I hit the tribe's third assignment of error there real quickly, that is a contrary to the opinion uh of the board of county commissioners, which is it's a net. We're looking at net measures. Um, and it wasn't an argument that was preserved or brought forth before. So, I'll just say that. Um, I'm going to kind of go through the rest of Gould, I guess. >> Can you just say that again, what you just said, so I make sure I understand what what your point is. the the there's there's two things. One, that argument wasn't raised before. Uh and the second thing is is if in fact we do a you're talking about the trib's third assignment of error. So that argument wasn't raised before. We submit that it's not preserved. Um and and they want a a water right by water right no net loss analysis. This is a net issue. Okay, we're looking at the whole plan, but factually what what the uh experts have shown is that we've already met the impact burden. Okay, we know what Thornberg's impact is. And because of that, if you instead stop using a different water, right, to help mitigate for supply, you know, so again, think about our big straw versus a different straw and we're cutting that straw off, that just leaves the water in that place, adds more to that system. Okay? So, we're not actually adding any more impact. We know what the impact is from Thornberg. And what is conclusively decided in the last uh goround uh is that we only have to we only have to mitigate for Thornberg's impact. So the uh issue related to drought uh or or whatnot that was at the very last second brought up by Miss Brager. It's a settled issue. We we are not mitigating for other impacts. That is closed closed closed closed. Um okay. Sorry I got off track. I want to stick with the tribes species by species argument. I understand I think you have two responses to that. One was that was never raised in the initial proceeding and under Becket issues that weren't raised and could have been raised in initial proceeding you can't then raise on remand. Tribes argue that's slicing between issue and argument too thinly and that we should look at what the court has a court of appeals has already determined and is binding on us that the issue of the treaty rights and whether this application violates treaty rights or harms the treaty rights is an issue that was preserved. Why is the species by species uh analysis or or standard requirement not just an argument under the treaty right? Why is that a new issue? >> Well, it presents an entirely different standard than what was uh asserted before. Okay. So, I have multiple answers to that. I'm going to start with the court of appeals because I think that's an important issue here. So what the court of appeals said tribe raisin their first assignment of error is that uh luba aired in agreeing quite frankly with the county and us that uh the trib's uh treaty right was not adequately preserved. They came in and they said we have a treaty right. We argued that it was not properly preserved that they had argued that you have to make this determination within the standard of meeting the treaty right. Court of appeals said they did enough. You you should have been on fair notice. Okay. That was the first assignment of error. And so, Luba, you aired because uh they raised it enough. The second assignment of error, and I'm I'm getting to this on a on a long way because I think it matters. The second assignment of error was the county gave short shrift to indigenous knowledge. Didn't consider it enough. And the court of appeals said, "No, we're rejecting your argument. It's a it's a substantial evidence issue." Luba applied the substantial evidence test correctly. County did fine. Good to go. So, it it agreed with them on the first time of eron preservation. and it disagreed on on the second assignment of error. And then at the bottom of that in Dicta, it then said, you know, if the county or sorry, if Luba if not a predetermined, Luba could have made its decision there. Um if uh if it's remanded, then they may have an opportunity to provide new evidence. Okay. And so what then happened is really important, which is Luba issued a new final opinion and order. And what that final opinion and order said was the county has to make uh quote on judicial review the court of appeals agree with the tribe that the issue was raised below. The issue was raised below sufficient uh specificity. So the county was obligated to make findings addressing it. Make findings addressing the treaty right didn't order um us to or the county to reopen the record or anything else. This was an appealable order. If the tribe thought that Luba's remand was insufficient, that it instead needed to say and the county must reopen the record or accept new evidence, which Luba has done previously, and the tribe was bound to appeal this order. It didn't do so. Okay. So, I I think that's material because they've um >> I understand that argument doesn't really answer the question I'm asking is petitioner or the tribes are saying the issue of the treaty is preserved. your argument or the county's conclusion that the species by species analysis was waved is cutting between issue and argument too thinly. And what our our answer to that is and it's it's briefed is that the issue of the treaty right was previously raised as an issue to under its fishing clause of a right to harvestable fish and everything that was cited by the tribe previously was a habitat standard and direct acknowledgement and authoritative citing to the court of appeals decision on the no net loss standard which said this is a net habitat standard and not a species by species analysis. That's what the tribe and every single submitt below said. Now, what the tribe is trying to argue now is that because it submitted its fish passage plan that that somehow put up put the county on notice that it had to do a species by species analysis despite never actually articulating that. Never saying [clears throat] that that just because we put in other plan documents that oh by the way the court of appeals rejected as things that we needed to consider as part of our mitigation that that somehow put you on notice of this new standard. And again, as we pointed out in our brief, and I went by submitt by submitt that was submitted by the tribes was never raised. And in fact, what was authoritatively raised was this was the court of appeals decision on the 2008 FWP that said this is just a net habitat standard. So when the tribe comes in and says it's a habitat standard, right to harvestable fish, which is a habitat standard, that's what they said. Now they come back and say you need a species by species analysis, that's completely changing uh what the applicable criteria is. And this happens all the time. Um, I'm going to use the Redside case as a really good example of that. The the the petitioners in that case came in and said, "We it's the same rule, but we're going to advance a brand new interpretation of that rule." That's what they're doing. They're saying, "We have a brand new interpretation of what our treaty right is despite not providing any citation to it, to the treaty, to any other applicable law." And what we said is, "Hey, this is what you said before, and this is what the other federal case law says. So now we're expected to do a species by species analysis. That's not fair. You didn't you didn't say that before. It's a completely new standard. It's waved. Our second response to that, which is also in these briefs, is that they said at worst you have to meet bare minimum uh ESA, endangered species act protection. And so what we've provided in there also is a table that says okay you've to the extent you've provided any information as to what species you're even concerned with. We've met those and we took those standards from the HCP which they included in the record and said okay these are the minimum flows that you're concerned with in the HCP. Oh look the FWMP more more than meets that. And so we've kind of done a >> Did the county find that or you're just pointing to evidence that the applicant submitted? uh we're we're we're pointing to evidence that the applicant submitted in our brief. So basically it's uh you know they're saying you have to meet that at a bare minimum and we did meet it. And so what the county did is the county said okay you said this is a a habitat issue and we've already determined that there's a net benefit to all habitat all habitat quantity and quality. So, how could we be degrading your right to harvestable fish, which is a habitat standard if we've already determined that all reaches have a benefit? It's log. It doesn't make any logical sense. And so, that's what the county did. The other part is is that the tribe is arguing that we have to provide what the treaty standard is, but we don't even really know what it is because they're saying it's a species by species analysis, but they haven't told us what species they care about or what reaches they care about. And what the county did uh make findings on and did include as well as we did in our brief is at least two cases that say that any any party that's asserting a treaty right at a bare minimum has to show has to tell you which species they're concerned with and how it actually impacts them, how it impacts the customary fishing areas. They didn't do that. They didn't even attempt to make it attempt to do it in the first proceeding. And despite the fact that the record was closed in this proceeding, they could still have said, they could still have said, and this is all throughout Lewis case law file, they still could have said, "We want to provide evidence as to how Shinnook are going to be specifically impacted in this area." And the board of county commissioners could have said, "Okay, we'll reopen the record so that you can do that." They didn't do that. There was no claim that they could provide additional evidence. And quite frankly, there's no claim of prejudice. So, we've we've well briefed this. Um, but I'm I'm hitting on it because you asked the question. >> Yeah. >> What's your next question? Because I only have a few more minutes. >> I'd rather get your questions than hear myself talk about kind of thing. >> Yes. The question I'll pose to you the question that I had for petitioner's attorney about their characterization of the modifications of the FWMP as evidence. >> I mean, it's essentially a legal blackbox argument. It's we you are required to uh address the compliance issues by luba's remand and yet if you submit anything to actually do that that's new evidence and you you can't actually get out of that box. It's not new evidence. We address the compliance provisions period. It's new applicable criteria. It's new legal requirements that we have to meet and the county determined that we met them based upon the record that was before it. Okay. It's not any change. I I think that the the premise that putting a new engineering stamp on the exact same document with like four words changed is new evidence is just kind of ridiculous. I mean, nothing else has changed. None of the substantive measures have changed. None of the impacts of the resort have changed. We haven't done anything else. We've just said, "Okay, you have to do more to meet compliance." That's that's not evidence. And then the argument that the compliance table that is filled in contains new information on the status of I think they're saying disputed information on the status of the OWRD approvals for those rights. Why is that not evidence? >> Well, it I think it could be if I'm if I'm being honest what is on this table there are there is information about the current status but the board didn't make any findings related to it. What the board said is we want this table as a format for you to fill out each year and provide to us and OWRD and that that will show that compliance is being met because you're showing what water is being kept in the stream and where. And so it was a format. Here's the table you must use. Before the only requirement under condition 40 was that there was reporting. It didn't mean anything. And so now we're saying you have to make specific uh pieces in here which talk about each water right where it is in the process how much water is being left in and the amount of water that Thornbury is using. So it's a it's >> so your your response to that is because the county did not rely on that information any procedural error in not allowing petitioners to submit responsive information is harmless error. Is that your argument? >> That's that would be part of my argument. My second part is is is petitioners have argued for years now that none of these water rights are valid and that none of Thornberg's water rights are valid. And so, you know, they've already responded. Quite frankly, the point is is that the plan says that if we take these measures, it meets the no net loss standard. It doesn't matter whether OWRD approves fish mitigation. The decision last time was also that OWRD approval may provide for fish mitigation and it may not. and in and what we've said is yeah OWD approval for fish mitigation itself doesn't matter what matters is that the water is being kept in the stream and we're showing that it does and that's what all of the expert opinion is what matters for OWRD approval is supply and that we can't use a single drop of water unless there's OWRD approval and so OW approval is something that we rely on in order to get supply and if we never get approval for any of the any of the measures in here which would allow Thornberg to use those rights for supply. It doesn't matter >> questions for Okay, I don't think we have any other questions. >> I think I have one minute. >> You do. Go ahead. >> Um I'm trying to decide if there's anything I want to try to hit for one minute. Um I guess I'll hit on a on a wide path of the e economics issue. Um it's a substantial evidence issue. Um bottom line is uh the the the uh reporting uh looked at the resort with the change the modification of removing a golf course and the and the county properly found it still provided substantial benefit. That's what it needed to do. Um I had one other thing I wanted to say. Can you hit on the argument about the wage evidence not accounting for inflation and why that is not does not make the wage evidence evidence that a reasonable person would not rely on to find an economic benefit? >> Um I we we briefed and the county made substantial findings on all of that. I I I off the top of my head I I believe it did actually account for inflation and the county made findings related to all of the economic issues including wage. >> I think your brief pointed to evidence that there was an increase in wages but not adjusted for inflation. >> I'm not sure what I can say is that the standard as a whole is whether the the modification the change the changes made still makes a substantial benefit and the county certainly made those findings >> and we're at time. All right. >> Thank you for your argument today. We will return to uh intervenor petitioner and petitioner for rebuttal and you'll Okay. Okay. Uh, record 2650. >> Will you please restate your name for the record? >> Petitioners, >> thank you. Go ahead. >> The public may not comment on any topic. So, record 2652 is the agenda for these work sessions that Miss uh that the county said Bishop could uh participate in. The very first page says the public may comment on any topic not on the current agenda. Record 2654 has action item 10 which is this item. Bishop had no opportunity to participate. Um the table that uh chair Zamoodio asked about is on record 1227 through 1229. Uh there's a brief summary on reply page four of Gul's reply. This speaks to the BFR right, which is right B, the tree farm temporary transfer, which is right D, and the Dutch Pacific, which is right E, which petitioners have always raised. None of those have been approved by OWRD for for use on the site. The original and said and and this is uh expert Newton's response that said during such a review by the OWRD the water right in question must be a certificated water right suitable evidence to prove use and availability will be questioned and investigated and a decision made regarding suitability for mitigation. This was again cited by luba at 64 to 65. This is means that OWRD review and approval is required. The cross petition before the uh court of appeals at record 797 to 798 and the court of appeals denying ownership and cessation at 387. The drought issue I raised at the closing of my opening was in relation to the economics argument. Again, no offsets were considered by JBREC. And when you go back to the table at 1227 to 1229, there's updated information about these water rights that mean there's going to be competition for scarce water supply. And then I want to note for sure that applicant is again rewriting the FWMP in briefing inserting OWRD before the word assignment. So if you can tell me what the O the FWMP means then that would be great. But until then this decision should be reversed so we can look at this issue holistically and I'll leave the remainder of the time for the tribes. >> I have a one more question about the exparte letter. Clearly, there's a dispute about the opportunity to rebut or respond. Your position as petitioner Bishop did not have an opportunity to rebut or respond prior to the board of commissioners decision on the scope of the remand. Mayor Police Board again, Josh Newton on behalf of the Confederated Tribes of Warm Springs. As a preliminary, I' I'd just like to object to applicant council's summary of the plan to the extent that believe portion of the summary is not supported by the record. I just want to make a general objection. Um, I want to talk a little bit about process then I want to try to bring this down to why does the tribe care? Because if you if you believe applicant, everything is good. The plan actually results in a net benefit systemwide. So why does the tribe care? And I want to leave you with that. First of all, if I understood county council correctly, reopening the record is really at the request of the party that has the burden of proof. That's what I think I heard is why they reopened the record on the economic analysis because applicant has a burden of proof. They felt they needed more information on remand to put into the record and it's a contestable issue. And yet applicant and county are on now taking the position that the tribe actually has the burden of proof to show a treaty violation. But it doesn't give the tribe the same rights that it gave applicant in terms of reopening the record. And we disagree that the tribe has the burden of proof here. It's the applicant. But the county can't have it both ways. They can't reopen the record for applicant. If applicant has the burden of proof and then tell the tribe it has a burden of proof. But it's not going to reopen the record because applicant says no. That seems that that comes back to the procedural trap of what they haven't figured out. Applicants council's argument, the majority of the argument as I was trying to get to my notes, I think was almost exclusively focused focused [clears throat] on compliance with the local county net loss standard. Applicants council didn't grapple with the treaty standard. It chided the tribe a bit here and there for saying that we invented a new standard. We came up with a new standard for the first time on remand. But if you honestly put yourself in the position of the tribe who didn't have notice, who didn't get to participate in the hearing officer proceedings in 2022 and comes in at the denovo appeal and has less than 30 days to try to understand this fish and wildlife management plan, which I'm sure the board members would say that's a tall order. The tribe was telling the county, "We don't have time. We have expertise and resources on staff. We can't marshall them in the time frame you've given us. We can't put forward our concerns about our treaty protected resources. That resonated with the court of appeals. That's what the court of appeals were getting at in its decision. That's when it looked at if the remand is going to go back. It recognized that the tribe is not only a treaty right holder, it's a sovereign co-manager of the resource the basin. There's no other party in this room that is that. The only other party that could claim that is ODFW. The tribe is not a project opponent. The tribe, its leaders, and we're charged with helping protect the tribal members treaty protected rights. What does that mean? And how can we put that into relief? Because we hear all this NE and everything is great, but it's it's probably not in this way. Suppose for the sake of argument that this goes forward. Thornberg builds out in its groundwater pumping manifests a specific measurable impact to the lower crooked river in a time of year when treaty perfected protected fish are migrating through either up or down and cannot complete their life cycle. They're killed. Those fish are undeniably killed. Now, I suspect that Thornberg and his council will say, "Well, it really doesn't matter because we're actually improving fish habitat throughout the basin, but they don't distinguish among fish habitat. That fish habitat may be non-native browntout fish species in the upper dashes. It may be fish habitat above big falls or salmon falls on the middle dashes river, which is a fish passage barrier for the treaty protected anatomy. So you're sacrificing at that point the treaty protected anatomy and saying well it's being offset with this fungeible other habitat benefit that is not that can't be the outcome here. That puts a that puts [clears throat] a federal treaty right subordinate to a local ordinance. If the federal treaty right says you cannot harm those treaty protected fish in lower crooked river and you're harming them, you can't say, "Well, the invasive bass species or the perch in Lake Billy Shinook are really doing well, so all is good." Yet, that's what the county standard allows. That's not what the treaty allows. And I suspect applicant knows that. And I also suspect that applicant knows that is going to be a difficult thing to grapple with. But that's the law. What what the tribe can't understand is why the county is going along with this. The county framed the issue at the outset of the remand proceeding and said we need to determine does this violate the treaty and then they shied away from it undeniably. >> What is the what is the legal foundation for the standard that you proposed for the species by species analysis required by the known net law standard? the treaty itself. >> Has that ever been interpreted to be applied on a species by species basis or would we be interpreting it in the first instance that way? >> Um yeah, I think it's been interpreted on a species by species basis. >> Are there citations to that in your uh brief on where that's happened? >> Well, members of I will say this that in Oregon the notion there are only treat two treaty tribes in Oregon. Warm Springs and Umatillaa. And to our notion, to our understanding, this is the first time either tribe has put their treaty fishing rights at issue in a state land use proceeding. We think the closest that it that we can come to is the actual court of appeals decision in this case, which recognizes that we have a right to a harvestable population of fish. And that's actually conceded by the county. >> Thank you. And we've reached nine minutes, so I think that's a good place to end. Thank you for uh your argument today and thank you for responding to the board's questions. Uh we will take all of the briefing and argument under consideration. The statutory due date for our decision in this appeal is July 13th. Uh we'll ask the parties for an extension so that we can issue our decision by August 3rd. And I will just say I think that's a very optimistic [laughter] deadline to present but we will ask the parties to agree to that. Is there any objection? >> No. >> Okay. Thank you. Um and that will

Summary: the impersonal arguments very much and this room was just uh renewed with all of its systems so we're still learning it as well. So I apologize for that delay and technical difficulties. Good morning. Are we rolling? Good morning. This is the time set for 049 Gould versus Dashes County. I'm board chairs Moodio. Board members Basham and Wilson Wilson are also with us today. I'm not aware of any pending motions. Is there anything that the parties need to bri…