Confederated Tribes of Warm Springs v. Deschutes Cty.

No. 281 May 1, 2024 361

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

THE CONFEDERATED TRIBES OF THE

WARM SPRINGS RESERVATION OF OREGON,

Central Oregon Landwatch,

Annunziata Gould, and Thomas Bishop,

Petitioners

Cross-Respondents,

v.

DESCHUTES COUNTY,

Respondent,

and

CENTRAL LAND AND CATTLE COMPANY, LLC;

Pinnacle Utilities, LLC; and Kameron Delashmutt,

Respondents

Cross-Petitioners.

Land Use Board of Appeals No. 2023038

Annunziata GOULD,

The Confederated Tribes of the Warm Springs Reservation

of Oregon, Paul J. Lipscomb, Thomas Bishop,

and Central Oregon Landwatch,

Petitioners

Cross-Respondents,

v.

DESCHUTES COUNTY,

Respondent,

and

CENTRAL LAND AND CATTLE COMPANY, LLC;

Pinnacle Utilities, LLC; and Kameron Delashmutt,

Respondents

Cross-Petitioners.

Land Use Board of Appeals No. 2023039

CENTRAL OREGON LAND WATCH,

The Confederated Tribes of the Warm Springs Reservation

of Oregon, Annunziata Gould, and Thomas Bishop,

Petitioners

Cross-Respondents,

362 Confederated Tribes of Warm Springs v. Deschutes Cty.

v.

DESCHUTES COUNTY,

Respondent,

and

CENTRAL LAND AND CATTLE COMPANY, LLC;

Pinnacle Utilities, LLC; and Kameron Delashmutt,

Respondents

Cross-Petitioners.

Land Use Board of Appeals No. 2023041;

A183421(Control), A183430, A183431, A183432, A183436,

A183461, A183462

Argued and submitted March 28, 2024.

Josh Newton argued the cause for petitioner-cross-

respondent The Confederated Tribes of the Warm Springs

Reservation of Oregon. Also on the briefs were Ellen Grover

and Best Best & Krieger LLP.

Carol Macbeth argued the cause and filed the brief for

petitioner-cross-respondent Central Oregon Landwatch.

Jennifer M. Bragar argued the cause for petitioner-

cross-respondents Annunziata Gould, Thomas Bishop, and

Paul J. Lipscomb. Also on the opening briefs were Jay M.

Harris and Tomasi Bragar Dubay. Also on the joint cross-

answering brief were Jay M. Harris, Tomasi Bragar Dubay,

and Carol Macbeth.

Ken Katzaroff argued the cause for respondent-cross-

petitioners Central Land and Cattle Company, LLC,

Pinnacle Utilities, LLC, and Kameron DeLashmutt. Also on

the brief were Keenan Ordon-Bakalian, Megan Breen, and

Schwabe, Williamson & Wyatt, P.C.

No appearance for respondent Deschutes County.

Jeffrey B. Litwak filed the brief amicus curiae for Columbia

River Gorge Commission.

Marcus M. Shirzad, Garrett Brown, and David J.

Cummings filed the brief amicus curiae for The Confederated

Tribes and Bands of the Yakama Nation, The Confederated

Cite as 332 Or App 361 (2024) 363

Tribes of the Umatilla Indian Reservation, and the Nez

Perce Tribe.

Before Tookey, Presiding Judge, Egan, Judge, and DeVore,

Senior Judge.

TOOKEY, P. J.

Reversed and remanded to LUBA on petition of The

Confederated Tribes of the Warm Springs Reservation of

Oregon, for consideration of Tribe’s first assignment of error

to LUBA; affirmed on cross-petition; otherwise affirmed.

364 Confederated Tribes of Warm Springs v. Deschutes Cty.

TOOKEY, P. J.

This is a judicial review of an order of the Land Use

Board of Appeals, dated January 12, 2024, upholding in part

and remanding in part an order of the Deschutes County

Board of Commissioners (the board) approving an application

by Central Land and Cattle Company, LLC, Pinnacle Utilities,

LLC, and Kameron DeLashmutt (collectively, Thornburgh)

for an amendment to the Final Master Plan (FMP) for the

Thornburgh Destination Resort relating to mitigation mea-

sures for the development’s impacts on fish, which Thornburgh

submitted to meet Deschutes County’s “no net loss” standard

set forth in Deschutes County Code (DCC) 18.113.070(D).

Thornburgh seeks to change the FMP by replacing the Fish

and Wildlife Management Plan (FWMP) approved in 2008

(the 2008 FWMP) with a new plan (the 2022 FWMP), so as

to reduce the resort’s proposed annual water consumption by

eliminating one of the resort’s proposed golf courses.

The five petitioners, The Confederated Tribes of the

Warm Springs Reservation of Oregon (the Tribe), Central

Oregon LandWatch (LandWatch), Annunziata Gould,

Thomas Bishop, and Paul J. Lipscomb (collectively, petition-

ers) contend that LUBA erred in rejecting their challenges

to the approval and raise different and sometimes overlap-

ping assignments of error. The Tribe also contends, among

other arguments, that LUBA erred in concluding that its

challenges to the BOCC’s failure to give sufficient weight to

the Treaty of 1855 were unpreserved.1

Thornburgh has filed a cross-petition, challenging

LUBA’s remand, contending that LUBA substituted its

judgment for that of the BOCC and weighed the evidence in

the record as the factfinder in the first instance, rather than

reviewing for substantial evidence, to find that the 2022

FWMP’s compliance provisions fail to meet the “no net loss”

standard.

We review LUBA’s order to determine whether it is

“unlawful in substance or procedure.” ORS 197.850(9)(a). “A

1

Amici curiae—the Confederated Tribes and Bands of the Yakama Nation,

the Confederated Tribes of the Umatilla Indian Reservation, and the Nez Perce

Tribe, and, separately, the Columbia River Gorge Commission—filed briefs in

support of the Tribe’s petition.

Cite as 332 Or App 361 (2024) 365

LUBA order is unlawful in substance if it represents a mis-

taken interpretation of the applicable law.” Kine v. Deschutes

County, 313 Or App 370, 372, 496 P3d 1136, rev den, 369 Or

69 (2021).

On the Tribe’s petition, we conclude that LUBA erred in

determining that the Tribe did not preserve its arguments

relating to the applicability of the Treaty of 1855 in deter-

mining whether the “no net loss” standard has been met,

and we therefore remand the order to LUBA for consider-

ation of that argument. We affirm LUBA’s order in all other

respects on the petitions and cross-petition.

I. BACKGROUND

This case is the latest in a long string of challenges

to the development of the resort. We described the back-

ground facts of the resort in our recent opinion in Gould v.

Deschutes County, 322 Or App 11, 518 P3d 978 (2022), and

we set them out here again only as necessary to resolve the

issues raised on judicial review.

Deschutes County provides for the development

of destination resorts by a three-step approval process

described in Deschutes County Code (DCC) 18.113.040. At

step one, a Conceptual Master Plan (CMP) for the resort is

processed for approval as though it were a conditional use

permit. DCC 18.113.040(A). At the second step, application

is made for a Final Master Plan (FMP). DCC 18.113.040(B).

The final step is a land division or site-plan review. DCC

18.113.040(C).2

In 2008, the county approved an FMP for the resort,

and we upheld that approval on judicial review. Gould v.

Deschutes County, 59 Or LUBA 435 (2009), aff’d, 233 Or App

623, 227 P3d 758 (2010) (affirming the FMP). The FMP

2

Thornburgh has completed the three-step approval process for: (1) a golf

course site plan; (2) a tentative plan for Phase A-l of development; and (3) a site

plan for 80 overnight lodging units (OLUs). Those approvals were challenged and

ultimately affirmed on judicial review. See Gould v. Deschutes County, 314 Or App

636, 314 P3d 357 (2021), rev den, 369 Or 211 (2022) (affirming the approval of a

golf course site plan); Gould v. Deschutes County, 322 Or App 11, 518 P3d 978,

rev den, 370 Or 694 (2022) (affirming the approval of the site-plan review for 80

OLUs); Gould v. Deschutes County, 322 Or App 571 (2022) (nonprecedential mem-

orandum opinion affirming the approval of the tentative plan for Phase A-l).

366 Confederated Tribes of Warm Springs v. Deschutes Cty.

provides for phased development. Both the CMP and the

FMP included Condition 1, which provides:

“Approval is based upon the plan as submitted. Any sub-

stantial change to the approved plan will require a new

application.”

The board has determined that “substantial changes” has

the meaning as the term is defined in DCC 18.113.080, “an

alteration in the type, scale, location, phasing or other char-

acteristic of the proposed development such that findings

of fact on which the original approval was based would be

materially affected.” 3

The CMP for the resort approved three golf courses

and required at least one golf course to be constructed in

the first phase. The approval was supported by an economic

benefits analysis (Benefit Study) explaining that golf course

facilities would be an important source of new jobs with a

total of 125 newly created jobs and 3.9 million dollars in

employee compensation. Based on the Benefit Study, the

county found that the resort “will generate a large number

of full-time positions that will have a positive effect on the

Deschutes County economy.”

The sole source of water for the resort is ground-

water to be pumped from the Deschutes River Basin aqui-

fer.4 There has been significant litigation around the ade-

quacy of the resort’s ability to provide the necessary ground-

water as well as to satisfy the “no net loss” standard of DCC

18.113.070(D), which is a county criterion for destination

resort development that requires that “[a]ny negative impact

on fish and wildlife resources will be completely mitigated so

that there is no net loss or net degradation of the resource,”

but those disputes have thus far been resolved favorably to

Thornburgh.

3

DCC 18.113.080 relates to modifications of a CMP and provides:

“Procedure for Modification of a Conceptual Master Plan. Any substan-

tial change, as determined by the Planning Director, proposed to an 322An

insubstantial change may be approved by the Planning Director. Substantial

change to an approved CMP, as used in DCC 18.113.080, means an alteration

in the type, scale, location, phasing or other characteristic of the proposed

development such that findings of fact on which the original approval was

based would be materially affected.”

4

No surface water runs through the resort property.

Cite as 332 Or App 361 (2024) 367

The FMP for the resort includes a fish and wildlife

habitat mitigation plan (FWMP) to satisfy the “no net loss”

standard. In 2008, Deschutes County approved the 2008

FWMP for the resort, and we ultimately upheld that determi-

nation. See Gould v. Deschutes County, 233 Or App 623, 636-

43, 227 P3d 758 (2010) (describing 2008 FWMP litigation).

The litigation involved in these petitions and the

cross-petition concerns Thornburgh’s request to modify the

originally approved FMP and 2008 FWMP so as to reduce

its groundwater consumption through reduced pumping of

groundwater from the aquifer, for the stated purpose of com-

plying with the “no net loss” standard. Thornburgh proposed

to reduce the resort’s annual groundwater pumping from

2,129 to 1,460 acre feet, an approximate 30 percent reduc-

tion, and an approximately 35 percent reduction in water

consumption, from 1,356 to 882 acre feet, in part, by not

developing one of the approved golf courses.5 The applica-

tion proposed that, as a modification of the 2008 FWMP and

in order to satisfy the “no net loss” standard, Thornburgh

would acquire water rights to provide fish habitat benefits

or would cancel other water rights.

After a public hearing, a Deschutes County hear-

ings officer rejected the application, based primarily on

Thornburgh’s failure to provide a sufficient plan for com-

pliance with the “no net loss” standard. On Thornburgh’s

and Gould’s appeal, the board held a de novo public hearing.

The Tribe, which had not previously been given notice of or

participated in the proceedings, requested to be added as a

party and participated. The board’s order summarized the

evidence that had been submitted and found:

“According to the science and technical reports, there is gen-

erally no scientific or biological significance in the impacts

under the 2022 FWMP and, as a whole, the plan provides

benefits to habitat for fish and aquatic species. Given this

context, we find that the 2022 FWMP plan meets the No

Net Loss Standard.”

Over objections by petitioners and the Oregon Department of

Fish and Wildlife (ODFW), the board approved Thornburgh’s

5

LUBA’s order explains that “consumptive use” means the amount of ground

water appropriation that will not return to surface water flows.

368 Confederated Tribes of Warm Springs v. Deschutes Cty.

request for modification, rejecting contentions that the “no

net loss” standard required ODFW and the Tribe’s concur-

rence and concluding that Thornburgh’s experts had pro-

vided credible, substantial evidence that the 2022 FWMP

satisfies the “no net loss” standard:

“The 2022 FWMP and its extensive technical evidence

shows that stream flows will increase and temperatures

decrease as a result of implementation of the 2022 FWMP.

As such, we find that methods provided by the groundwa-

ter mitigation program, including the methods relied upon

by the 2022 FWMP, are sufficient to meet the no net loss

standard.”

The board approved the 2022 FWMP as a modification of

the 2008 FMP.

LUBA upheld the board’s approval as against all of

the petitioners’ challenges in most respects but remanded

the board’s order for reconsideration of those issues that

LUBA concluded required further analysis, one of which we

address on the cross-petition. We consider the various peti-

tions in the order that we conclude makes logical sense.

II. LIPSCOMB’S PETITION, CHALLENGING LUBA’S

DEFERENCE TO THE BOARD’S CONSTRUCTION OF

“SUBSTANTIAL CHANGE” AS USED IN CONDITION 1

Lipscomb raises two assignments of error on judi-

cial review relating to the BOCC’s construction of the text of

Condition 1 of the CMP and FMP, which provides that “[a]ny

substantial change to the approved plan will require a new

application.” Lipscomb asserts in his first assignment that

the board’s construction of “substantial change,” as used in

Condition 1 is not entitled to deference, because Condition 1

is not an ordinance for which the board’s construction is

entitled to deference. Siporen v. City of Medford, 349 Or 247,

259, 243 P3d 776 (2010) (setting forth standard of deference

to local government’s plausible construction of its own zon-

ing ordinances). However, as we understand LUBA’s order,

LUBA concluded that the board’s construction was of the

ordinance itself and not Condition 1. As LUBA concluded,

the board’s conclusion that the definition of “substantial

change” in DCC 18.113.080 applies to Condition 1 is a

Cite as 332 Or App 361 (2024) 369

plausible construction to which deference is owed. LUBA did

not err.

Lipscomb’s second assignment focuses on Condition 1’s

requirement that “[a]ny substantial change to the approved

plan will require a new application.” (Emphasis added.)

Lipscomb argues in his second assignment that the require-

ment for a “new application” means that, upon a substan-

tial change, the application process must begin anew, with

a new CMP. Thus, Lipscomb contends that LUBA erred in

affirming the board’s determination that it was sufficient

for Thornburgh to file an application to modify only the

aspect of the approval that is proposed to be changed. LUBA

concluded that that construction of the DCC was a plausi-

ble one entitled to deference. We have reviewed the rele-

vant provision of the DCC and agree with LUBA that the

board’s construction of the DCC is a plausible one to which

deference is owed. And assuming that the proposed changes

are “substantial,” within the meaning of DCC 18.113.080,6

LUBA correctly held that the board could plausibly construe

the DCC to not require that the proposed changes start the

application process from scratch but, rather, be addressed

through an application for modification of the FMP. That

concludes our discussion of Lipscomb’s petition, with the

exception of Lipscomb’s concurrence with an argument

made by Gould, which we discuss later.

III. LANDWATCH’S PETITION, CHALLENGING

LUBA’S DEFERENCE TO THE BOARD’S CONSTRUC-

TION OF “SUBSTANTIAL CHANGE” AS LIMITED TO

CONSIDERATION OF PROPOSED MODIFICATION

In approving the 2022 FWMP, the board found that

the CMP and FMP approvals did not depend on or require

the planned resort to use all of the water predicted as

6

DCC 18.113.080 provides:

“Procedure for Modification of a Conceptual Master Plan. Any substan-

tial change, as determined by the Planning Director, proposed to an approved

CMP shall be reviewed in the same manner as the original CMP. An insub-

stantial change may be approved by the Planning Director. Substantial

change to an approved CMP, as used in DCC 18.113.080, means an alteration

in the type, scale, location, phasing or other characteristic of the proposed

development such that findings of fact on which the original approval was

based would be materially affected.”

370 Confederated Tribes of Warm Springs v. Deschutes Cty.

consumptive use in the FMP. Thus, the board found that

Thornburgh’s commitment in the 2022 FWMP to use less

water than contemplated in the FMP and to forego develop-

ing a golf course that had been approved in the FMP did not

change the approved resort in a manner that would materi-

ally affect the CMP/FMP findings as to the satisfaction of a

county code requirement that adequate water be available

for all proposed uses.7 LUBA agreed.

LandWatch raises three assignments of error.

LandWatch’s first assignment, like Lipscomb’s, relates to

“substantial change.” LandWatch asserts that LUBA erred

in deferring to the board’s conclusion that the determina-

tion whether there has been a “substantial change” is lim-

ited to consideration whether the proposed modification

gives rise to a “substantial change.” In LandWatch’s view, a

“substantial change” is any change that materially affects

the findings of fact on the which the CMP or FMP approv-

als rely. LandWatch asserts that the evidence shows that

Thornburgh has no water available to supply the resort,

primarily through the expiration of Water Right Permit

G-17036, and that that is a substantial change that should

have been addressed by the board. LandWatch contends

that LUBA’s order is unlawful in substance in not deciding

whether Thornburgh’s loss of the available water to supply

to the resort constitutes a Condition 1 substantial change,

and, like Lipscomb, asserts that LUBA erred in failing

to reverse the board’s order and require that Thornburgh

begin the application process anew.

LUBA reasoned that the question of the availabil-

ity of water to the resort was not a required aspect of the

board’s consideration in determining whether the changes

7

DCC 18.113.070(K) is a resort approval criterion that requires the county

to find:

“Adequate water will be available for all proposed uses at the destination

resort, based upon the water study and a proposed water conservation plan.

Water use will not reduce the availability of water in the water impact areas

identified in the water study considering existing uses and potential devel-

opment previously approved in the affected area. Water sources shall not

include any perched water table. Water shall only be taken from the regional

19 aquifer. Where a perched water table is pierced to access the regional

aquifer, the well must be sealed off from the perched water table.”

Cite as 332 Or App 361 (2024) 371

proposed by Thornburgh to the FMP and the FWMP met

the “no net loss” standard. Under the board’s interpretation

of the “substantial change” inquiry, to which LUBA properly

deferred, that conclusion was correct.8 The board identified

its task as determining whether the changes proposed by

Thornburgh were substantial, not whether circumstances

outside of the application had substantially changed. And as

Thornburgh correctly responds, the record does not estab-

lish that Thornburgh has no water rights available to it.

See Gould v. Deschutes County, 322 Or App at 18 (affirming

LUBA’s determination that Thornburgh had met the docu-

mentation requirement of FMP Condition 10 pertaining to

water rights and mitigation).

LandWatch further argues that LUBA erred in fail-

ing to decide that issue, in violation of ORS 197.835(11)(a):

“Whenever the findings, order and record are sufficient

to allow review, and to the extent possible consistent with

the time requirements of ORS 197.830(14), the board shall

decide all issues presented to it when reversing or remand-

ing a land use decision described in subsections (2) to (9) of

this section or limited land use decision described in ORS

197.828 and 197.195.”

In fact, LUBA did consider LandWatch’s argument and

explicitly rejected it, based on its deference to the county’s

decision to interpret “substantial change” to have the mean-

ing that it does in DCC 18.113.080.

LandWatch, like Lipscomb, contends that LUBA erred

in deferring to the county’s interpretation of Condition 1 as

to the meaning of “substantial change,” because no defer-

ence is owed to the interpretation of a condition, as opposed

to a code provision. LandWatch further argues that, textu-

ally, “substantial change” should not mean the same thing

in Condition 1 as it does in DCC 18.113.080:

8

LUBA stated:

“The county has interpreted ‘substantial change’ in Condition 1 to have the

same meaning as the term is used in DCC 18.113.080, which is ‘an alteration in

the type, scale, location, phasing or other characteristic of the proposed develop-

ment such that findings of fact on which the original approval was based would

be materially affected.’ Thus, Thornburgh must submit a new application for

any proposed modification that will alter a characteristic of the approved resort

development such that any finding of fact supporting the CMP or FMP approval

would be materially affected.”

372 Confederated Tribes of Warm Springs v. Deschutes Cty.

“The definition of ‘substantial change’ in DCC 18.113.080

is limited to that section. It is not a global definition of the

term ‘substantial change.’ DCC 18.113.080 does not define

a ‘substantial change’ as a ‘modification.’ Rather, DCC

18.113.080 defines a ‘substantial change’ as an ‘alteration.’

In DCC 18.113.080, some CMP modifications are substan-

tial changes, and some substantial changes are CMP mod-

ifications, but it does not follow that all substantial changes

must be CMP modifications.”

In LandWatch’s view, DCC 18.113.080 does not mandate

that all “substantial changes” be defined as in that sec-

tion of the DCC. LandWatch therefore contends that LUBA

should have interpreted “substantial change” as a matter

of law. The county’s construction is plausible. LUBA there-

fore did not err in deferring to the county’s conclusion that

the meaning of “substantial change” as defined in DCC

18.113.080 should apply to Condition 1.

In its second assignment, LandWatch makes the

same argument as Lipscomb relating to the board’s conclu-

sion that Thornburgh was not required to begin the appli-

cation process anew but could seek approval for the pro-

posed changes through a modification application. We reject

LandWatch’s assignment for the same reason we reject

Lipscomb’s.

In its third assignment of error, LandWatch con-

tends that LUBA erred in affirming the board’s determi-

nation that CMP Condition 28 has been superseded by

Condition 37. Condition 28 provided:

“Applicant shall abide at all times with the [Memorandum

of Understanding] with BLM, dated September 28, 2005,

regarding mitigation of impacts on surrounding federal

lands, to include wildlife mitigation and long range trail

planning and construction of a public trail system. The mit-

igation plan adopted by Applicant in consultation with Tetra

Tech, ODFW and the BLM shall be adopted and imple-

mented throughout the life of the resort.”

(Emphasis added.) After litigation determining that Con-

dition 28 was legally insufficient because it failed to provide

an opportunity for public participation in the board’s deci-

sion on whether Thornburgh’s mitigation plan satisfied the

Cite as 332 Or App 361 (2024) 373

“no net loss” standard, Gould v. Deschutes County (Gould II),

216 Or App 150, 159, 171 P3d 1017 (2007), the BOCC adopted

Condition 37:

“Applicant shall demonstrate compliance with DCC

18.113.070(D) by submitting a wildlife mitigation plan to

the County as part of its application for Final master plan

approval. The County shall consider the wildlife mitigation

plan at a public hearing with the same participatory rights

as those allowed in the CMP approval hearing.”

LandWatch asserts that under Condition 28, the ODFW must

approve Thornburgh’s mitigation plan. LandWatch further

asserts that, contrary to LUBA’s holding, Condition 37 does

not supersede Condition 28. Thus, LandWatch asserts,

LUBA erred in affirming the board’s approval of the 2022

FWMP, which was not approved by the ODFW.

LandWatch’s contention is answered by the fact

that, as a textual matter, Condition 28 does not require

ODFW’s approval of a mitigation plan; it requires that the

plan be developed in consultation with ODFW. There is no

dispute that the 2022 FWMP was developed in consulta-

tion with the ODFW. LUBA did not err in concluding that

the board’s approval of the 2022 FWMP did not require the

approval of ODFW.

IV. GOULD’S PETITION, CHALLENGING LUBA’S

REJECTION OF CONTENTION THAT UNDERLYING

CMP IS VOID

In her first assignment of error, in which Lipscomb

joins, Gould contends that the board lacked authority to con-

sider Thornburgh’s request for a modification of the FMP,

because the underlying CMP had become void and no new

CMP has been initiated. In rejecting that argument, LUBA

deferred to the board’s conclusion that the CMP had been

incorporated into and superseded by the FMP. We agree

with LUBA that the board’s conclusion represents a plausi-

ble construction of the DCC and that deference was there-

fore appropriate.

Additionally, as LUBA held, Gould’s contention has

been rejected by LUBA in Central Land and Cattle, LLC v.

Deschutes County, 74 Or LUBA 326, aff’d without opinion,

374 Confederated Tribes of Warm Springs v. Deschutes Cty.

283 Or App 286, 388 P3d 739 (2016), rev den, 361 Or 311

(2017). Gould challenges LUBA’s determination that Gould

is attempting to litigate an issue that has previously been

determined in Central Land and Cattle, LLC, contending

that LUBA incorrectly relied on the law of the case, which

it argues applies only to appellate decisions. We need not

resolve whether LUBA properly referred to law of the case,

because, as we said in Gould v. Deschutes County, 322 Or App

at 23, a party is not entitled to relitigate issues that have

been resolved on review of previous phases of the same land

use litigation. Beck v. Tillamook, 313 Or 148, 153, 831 P2d

678 (1992). LUBA’s prior holding is conclusive of the issue.9

In her second assignment of error, Gould argues,

similarly to LandWatch, that water availability conditions

have changed significantly since the original CMP was

approved and that a new CMP therefore must be initiated

pursuant to DCC 18.113.070(K). For the same reason that

we reject LandWatch’s first assignment of error, we reject

this assignment.

9

LUBA held:

“For purposes of this appeal we will assume without deciding that the

CMP approval has become ‘void’ under DCC 22.36.010(B)(1). However, even

if we assume the County’s CMP approval became void on November 18, 2011,

we conclude below in addressing the third cross-assignment of error that the

FMP remand proceedings were initiated by Thornburgh Resort on August

15, 2011, which was before the CMP became void. The county’s first FMP

approval decision found, with only two exceptions, that the FMP fully com-

plies with the CMP. Those two exceptions have to do with the no net loss/

degradation standard that normally applies at the time of CMP approval. The

county’s decision to defer its finding on the DCC 18.113.070(D) no net loss/

degradation standard until FMP approval was affirmed in Gould v. Deschutes

County, 57 Or LUBA 403 (2008), aff’d, 227 Or App 601, 206 P3d 1106 (2009).

As Gould correctly notes, the CMP potentially remains a relevant source of

FMP approval considerations because at least some of the CMP conditions

of approval effectively cannot be performed until after FMP approval. But

those conditions of approval were carried forward in the county’s first FMP

approval decision and remain part of the current FMP approval decision.

All requirements of the CMP approval are now requirements of the county’s

FMP approval. The FMP approval has effectively incorporated and displaced

the CMP approval. In these unusual circumstances, where the only remain-

ing questions on appeal concern two issues that were expressly deferred to

the FMP decision, we conclude it was not error for the county to proceed to

determine on remand whether the errors identified by LUBA in the FMP

could be corrected and the FMP approved for a second time, even though the

CMP approval has become void.”

74 Or LUBA at 346 (footnote omitted).

Cite as 332 Or App 361 (2024) 375

V. BISHOP’S PETITION, CHALLENGING SUFFI-

CIENCY OF EVIDENCE OF THE BOARD’S BASELINE

DETERMINATION AND LUBA’S DEFERENCE TO THE

BOARD’S CONSTRUCTION OF DCC 18.113.070(D)

DCC 18.113.070(D) requires that a destination

resort mitigate all negative impacts such that there is no

net loss or degradation of fish and wildlife resources, and

provides:

“In order to approve a destination resort, the Planning

Director or Hearings Body shall find from substantial evi-

dence in the record that:

“* * * * *

“D. Any negative impact on fish and wildlife resources

will be completely mitigated so that there is no net loss or

net degradation of the resource.”

On judicial review of the 2008 FMP approval, we inter-

preted the meaning of “fish and wildlife resources” in DCC

18.113.070(D) to “refer[ ] not to species of fish and wildlife,

but to the habitat that supports fish and wildlife.” Gould

v. Deschutes County, 233 Or App 623, 631-33, 227 P3d 758

(2010). In that opinion, we accepted the parties’ understand-

ing that DCC 18.113.070(D) requires, first, an assessment of

fish and wildlife resources before development and, second,

mitigation to make up for negative impacts caused by devel-

opment. Id. at 631. We determined that “fish and wildlife

resources” could be measured by the habitat that supports

fish and wildlife, and a plan could satisfy the standard if

it “will completely mitigate any impact on the habitat that

supports fish and wildlife, without showing that each indi-

vidual species will be maintained or replaced on a one-to-

one basis.” Id. at 631-34. Thus, the first part of the “no net

loss” analysis requires an “assessment of fish and wildlife

resources before development.” Id. at 631. The parties and

LUBA refer to the status of fish and wildlife resources before

development as the “baseline.” Once a baseline condition is

established, and once the negative impacts are quantified,

the applicant is tasked with presenting a plan that will

ensure that the impacts are completely mitigated for the life

of the resort. The negative impacts are measured from the

376 Confederated Tribes of Warm Springs v. Deschutes Cty.

baseline conditions, for example the baseline temperatures

and flow rates.

Thornburgh presented, and the board relied on, evi-

dence of streamflow data from the 2016 hydrological year,

as a typical hydrological year, for determining baseline

flows for purposes of measuring fish habitat impacts. The

board further determined the “no net loss” standard only

requires a resort to mitigate its own impacts, not the cumu-

lative impacts of drought or other basin-wide water policy

and management issues.10 Bishop argued to LUBA that

habitat modeling should account for impacts to the stream

system habitat that are “identifiable, predictable, measur-

able, and reasonably likely to occur,” such as drought and

changed stream flows in response to implementation of the

Deschutes Basin Habitat Conservation Plan (DB HCP), a

basin-wide plan that requires eight irrigation districts and

the City of Prineville to manage irrigation activities in the

Deschutes River Basin to provide habitat protections for

endangered fish and wildlife. LUBA reasoned that Bishop’s

construction is one plausible reading of DCC 18.113.070(D).

10

The board found:

“Many of the arguments and issues related to Thornburgh’s 2022 FWMP

are related to drought and regional well decline. Opponents assert that these

are relevant issues and should lead to denial. We disagree. The No Net Loss

Standard requires a resort to mitigate its own impacts, not the cumulative

impacts of drought or other basin wide water policy and management issues.

The No Net Loss/degradation test is limited to addressing potential negative

impacts of resort development. Impacts to habitat caused by other persons or

environmental conditions are not attributable to [the resort’s] use of water or

the impacts of [resort’s] use.

“Thornburgh has quantified its impacts on water quality and quantity

and the locations where these impacts will occur. It has studied waterway

conditions in a typical year, and it has also provided expert evidence that

shows the benefits of mitigation are enhanced during periods of drought.

This approach properly accounts for issues of drought and the low flow con-

ditions opponents argue make the results of Thornburgh’s expert analysis of

aquatic habitat unreliable.

“Opponents, ODFW, and the Tribe have also raised issues that pend-

ing litigation regarding flow requirements and the [DB HCP] related to

the Spotted Frog may lead to additional constraints on live flows. These

issues are outside of the scope of the [resort’s] impacts and [the resort] is not

required to mitigate for them.

“Thornburgh must mitigate for its impacts, alone. Further, Thornburgh’s

plan relies primarily upon groundwater water sources, and its technical

analysis shows that the 2022 FWMP will result in increased surface flows

which are beneficial to fish and wildlife.”

Cite as 332 Or App 361 (2024) 377

But LUBA concluded that the board’s construction is also

plausible, reasoning that the board’s construction that “any

negative impact” may be analyzed based on a baseline flow

that represents a typical water year, measured only by the

resort’s impact on the system,

“is not expressly inconsistent with the language of DCC

18.113.070(D) or the underlying policy—which is to hold

a proposed resort accountable to completely mitigate the

resort’s impacts so that there is no net loss of fish resources.”

LUBA thus deferred to and upheld the board’s interpretation.

Bishop’s assignments of error focus on the “no net

loss” standard and relate primarily to the sufficiency of

Thornburgh’s evidence with respect to the “baseline” from

which to determine a mitigation plan’s impact on existing

habitat and whether the 2022 FWMP satisfies the “no net

loss” standard. In his first assignment, although Bishop char-

acterizes LUBA’s error as “shift[ing] the burden to Petitioners

to properly define the baseline for study of whether the resort

can meet the no net loss or degradation of fish and wildlife

resources standard,” underlying the assignment is Bishop’s

view that the evidence on which the board relied to establish

a baseline was simply legally insufficient, because it failed to

take into account basin-wide circumstances such as drought,

groundwater decline, well deepening, and changed flows

resulting from implementation of the DB HCP, affecting fish

habitat beyond the resort’s uses and impacts.

We are not persuaded that LUBA erred in deter-

mining that the board’s narrow construction of DCC

18.113.070(D) is plausible and entitled to deference. As

LUBA concluded, it is not contradicted by the text of the

code provision. Nor are we persuaded that the county’s con-

struction is inconsistent with our holding in Gould, 233

Or App at 633, that “DCC 18.113.070(D) allows a focus on

fish and wildlife habitat [as opposed to each individual spe-

cies of fish] to establish that ‘[a]ny negative impact on fish

and wildlife resources will be completely mitigated so that

there is no net loss or net degradation of the resource.’ ”

LUBA further determined that the board’s deter-

mination of a baseline flow using the 2016 hydrological year

378 Confederated Tribes of Warm Springs v. Deschutes Cty.

was supported by substantial evidence. Bishop contends

that LUBA erred, because the analysis of the board ignores

pertinent changes in flows that have occurred since 2016

and that impact habitats, including drought, groundwater

decline, well deepening, and changed flows resulting from

implementation of the DB HCP. In reviewing LUBA’s sub-

stantial evidence determination, our role is not to reweigh

the record but to determine whether LUBA properly stated

and applied the substantial evidence standard of review.

Citizens for Responsibility v. Lane County, 218 Or App 339,

345, 180 P3d 35 (2008). LUBA did not err.

Also under his first assignment of error, Bishop

contends that LUBA erred by shifting the burden of proof

in assigning to petitioners responsibility to present the

all the factors that must be considered in determining the

proper baseline, rather than requiring the board to require

Thornburgh to provide a complete assessment. We do not

view LUBA’s analysis to have shifted the burden; rather,

LUBA determined that substantial evidence supported the

board’s findings.

The 2022 FWMP includes a provision relating to

“compliance”—conditions that Thornburgh must adhere

to in order to ensure that the 2022 FWMP meets the “no

net loss” standard.11 The board determined that “the 2022

FWMP ensures ongoing compliance with the No Net Loss

11

Section D of the 2022 FWMP compliance provision describes the methods

by which Thornburgh can establish compliance:

“Compliance: The purpose of this section is to clarify what constitutes com-

pliance with this updated 2022 FWMP, whether during the review of Resort

land use applications, as reported as part of annual monitoring, or for any

other purpose. As noted above Thornburgh owns 1,211 AF of water rights to

be used for pumping or mitigation and pumping at the point of diversion or

appropriation of the certificate has been discontinued. For the reasons dis-

cussed herein compliance with this FWMP has been met for rights b-f, and

will be met for the TSID water (g) in the manner discussed in this Section,

1b below. For any additional water rights that are acquired compliance will

be met as described herein.

“1. Compliance with this FWMP will occur differently for water appropri-

ated from a surface water Point of Diversion (POD) versus a groundwater

Point of Appropriation (POA) or for a mitigation credit as follows:

“a. POA - Groundwater: For any future rights that may be acquired, com-

pliance occurs upon the cessation of pumping of the rights and along with

any of the following: deed evidencing the transfer of ownership, a submittal

to OWRD of any of the following: (i) an assignment of the water right to

Cite as 332 Or App 361 (2024) 379

Standard and sufficient monitoring is required by the 2022

FWMP and FMP Condition 40.”12

LUBA disagreed with the board with respect to the

compliance provision’s sufficiency and remanded the 2022

FWMP compliance provision to the board, concluding that

the compliance provision’s reliance on OWRD applications

for groundwater permits was not sufficient. LUBA agreed

with Bishop’s contention that the county must require proof

of completion of each alternative OWRD process, rather than

mere ownership of a certificate and submittal of an applica-

tion to OWRD, before the county may conclude that the “no

net loss” standard has been satisfied. LUBA agreed with

Bishop’s contention that, under the 2022 FWMP, the county

has no way to determine if fish habitat mitigation water will

be available before approving actual buildings on site under

a third-stage approval. LUBA also concluded that the 2022

FWMP reporting requirements are not sufficient to make

up the shortcoming of the compliance provisions to demon-

strate “no net loss.” Thus, LUBA issued a narrow remand,

relating to the sufficiency of the compliance conditions of the

2022 FWMP with respect to groundwater permits.13

In his second assignment of error, Bishop contends

that the entire compliance section—not just that related to

Thornburgh, (ii) an application that seeks OWRD approval of a transfer to

pump at the Resort property, or (iii) a cancellation in-lieu of mitigation.

“b. POD - Surface Water: Once acquired, Compliance occurs upon the cessa-

tion of pumping at the source and submittal to OWRD, and OWRD issues a

final order (or its equivalent) approving any of the following: (i) an application

that transfers to pump at the Resort property, (ii) an application that trans-

fers the water to an in-stream lease, (iii) the cancellation in-lieu of mitiga-

tion, or (iv) an application to transfer to obtain mitigation credits, permanent

or temporary.

“c. Mitigation Credit: ln the event that Thornburgh acquires mitigation cred-

its, compliance occurs when Thornburgh provides proof of ownership or proof

of submittal to OWRD to use the credits as mitigation.

“Thornburgh also agrees to the following measures to provide mitigation bene-

fits over and above the benefits achieved by the mandatory measures described

above.”

12

Condition 40 provides: “Thornburgh shall comply with the 2022 [FWMP],

including its compliance and reporting mechanisms found in Section II of that

plan.”

13

We note that Thornburgh’s cross-petition, which we address later in this

opinion, challenges LUBA’s determination as to the sufficiency of the compliance

provisions.

380 Confederated Tribes of Warm Springs v. Deschutes Cty.

groundwater—was legally insufficient, because it allows

Thornburgh to use all current listed water rights for con-

sumption, leaving compliance with the “no net loss” standard

to unidentified and not-yet purchased (or proven available)

water rights. Bishop asserts that the board’s finding that

such prospective purchase of water rights would result in no

net loss or degradation of fish and aquatic wildlife habitat has

no support in the record, or basis in law or fact. Thus, Bishop

contends, the 2022 FWMP “undeniably creates a loophole for

compliance that does not assure no net loss/degradation of

fish and aquatic wildlife habitat.” Bishop also argues that an

“instream water right” (ISWR) lease is insufficient as a form

of compliance for surface water rights used for mitigation.

Thornburgh responds that Bishop’s arguments

under his second assignment as relating to ISWR leases and

surface water compliance provisions are not preserved—

that Bishop did not make those arguments to LUBA and

that LUBA’s remand relates only to the inadequacy of com-

pliance measures as to groundwater, and we agree. It is

apparent from LUBA’s order that Bishop did not present the

lease argument to LUBA and that the remand is limited

to compliance provisions relating to groundwater only.14 We

reject Bishop’s second assignment of error as unpreserved.

14

LUBA explained:

“Thornburgh does not argue that the reporting requirements in the 2022

FWMP are sufficient to demonstrate no net loss, and we do not see that they

are. The required report might show that the quantities and quality of water

assumed in the 2022 FWMP have been provided, or it might not. No addi-

tional reporting is required during the review of any land use application

related to the resort. As we understand it, the 2022 FWMP modeling assumes

equal efficacy and reliability as between instream water right transfers and

voluntary cancellation of water rights so that those legal processes have the

same instream impacts on water quality and quantity. We agree with Bishop

that the county’s findings are inadequate to explain why submittal to OWRD

is sufficient to satisfy the no net loss standard with respect to groundwater

sources for fish habitat mitigation. Indeed, Thornburgh and the county rely

upon OWRD processes to ensure that voluntary cancellation of water rights

consistent with OWRD rules and review processes will result in improved

fish habitat. * * * The county has failed to explain how simple submittal of an

application to OWRD permits the county to rely on those OWRD processes.

“Thornburgh points to no evidence to support the county’s conclusion that

the ‘2022 FWMP ensures ongoing compliance with the No Net Loss Standard

and sufficient monitoring is required by the 2022 FWMP and FMP Condition

40.’ * * * Thornburgh has not pointed to any evidence supporting a conclu-

sion that ground water right certificate ownership, cessation of pumping, and

Cite as 332 Or App 361 (2024) 381

VI. THE TRIBE’S PETITION, CHALLENGING

LUBA’S CONCLUSION THAT ERROR RELATING

TO IMPLICATIONS OF TREATY RIGHTS IS

UNPRESERVED

Under the provisions of the treaty with the Tribes of

Middle Oregon, dated June 25, 1855 (1855 Treaty), the Tribe’s

predecessors ceded their traditional lands to the United

States. In exchange, they reserved the lands that became the

Warm Springs Reservation for their exclusive occupation and

use, and a nonoccupancy interest in ceded lands. Specifically

with regard to fishery resources, the 1855 Treaty reserved to

the Tribe the exclusive right to take fish “in the streams run-

ning through and bordering [the Warm Springs Reservation]”

and at “all other usual and accustomed stations.” 1855 Treaty;

Anthony v. Veatch, 189 Or 462, 483, 220 P2d 493 (1950). The

substantial majority of the Deschutes Basin, including

Thornburgh Resort, lies within the lands used and occupied

by the Tribe since time immemorial, and the Tribe is a sover-

eign co-manager of the fish resources of the Deschutes Basin.

The 1855 Treaty was enacted as federal law at 12

Stat 963 and is the “supreme law of the land.” US Const, Art

VI, § 2; Skokomish Indian Tribe v. United States, 410 F3d

506, 512 (9th Cir 2005), cert den, 546 US 1090 (2006) (citing

Breard v. Greene, 523 US 371, 376, 118 S Ct 1352, 140 L Ed

2d 529 (1998). Thus, the State of Oregon, as well as its local

governments, must observe the 1855 Treaty.15 The interpre-

tation of the 1855 Treaty is a matter of federal law. State v.

Begay, 312 Or App 647, 652, 495 P3d 732 (2021); see Felix

Cohen, Cohen’s Handbook of Federal Indian Law § 2.01(1),

109 (Nell Jessup Newton ed 2012) (explaining that federal

law governs the United States’ recognition of tribal status

and rights).

OWRD submittal is sufficient to ensure fish mitigation water will be pro-

vided as assumed in the 2022 FWMP.”

15

We reject Thornburgh’s contention that the Ninth Circuit in Skokomish

Indian Tribe held that local governments are not bound by tribal treaties. That

court held only that a tribe is not a “private person” under section 1983 and there-

fore cannot maintain a private action for damages under section 1983 against a

governmental entity that is not a party to the treaty for violation of fishing rights

reserved by the treaty. 410 F3d at 514. The court did not address whether local

governments are otherwise bound to comply with treaty provisions and the issue

was not before the court.

382 Confederated Tribes of Warm Springs v. Deschutes Cty.

The United States Court of Appeals for the Ninth

Circuit has held that the 1855 Treaty secures to the Tribe

and its members a right to a harvestable population of fish in

the Deschutes Basin and to protect the habitat necessary to

sustain those fish. See generally United States v. Washington,

853 F3d 946 (9th Cir 2017), aff’d by an equally divided court,

584 US 837 (2018). The court has held that the amount of

instream water necessary to sustain that habitat is “at least

equal to” what is needed to satisfy any applicable Endangered

Species Act (ESA) obligations for listed-fish species, including

the Middle Columbia River steelhead and bull trout. Baley v.

United States, 942 F3d 1312, 1337 (9th Cir 2019).

The Tribe argued in its first assignment of error

before LUBA that the board improperly failed to consider

whether approval of the 2022 FWMP violates the fishing

clause of the 1855 Treaty and improperly failed to consider

the Treaty in determining whether the 2022 FWMP satis-

fies the “no let loss” standard under DCC 18.113.070(D) that

the board was required to apply in considering Thornburgh’s

application. LUBA determined that the Tribe had failed to

adequately raise that issue before the board and therefore

had failed to preserve it for LUBA’s consideration; thus,

LUBA did not address the merits of the issue.

In its petition for judicial review, the Tribe con-

tends that LUBA erred in determining that the Tribe failed

adequately to preserve before the board and to present

to LUBA whether the 1855 Treaty must be considered in

determining whether the 2022 FWMP satisfied the “no net

loss” standard. The Tribe points out that the right to fish

on its reserved lands, as well as in all “usual and accus-

tomed places,” including those places now located on ceded

lands, see United States v. Winans, 198 US 371, 381, 25 S Ct

662, 49 L Ed 1089 (1905) (“The right to resort to the fishing

places in controversy was a part of larger rights possessed

by the Indians, upon the exercise of which there was not a

shadow of impediment, and which were not much less nec-

essary to the existence of the Indians than the atmosphere

they breathed.”), includes the right to have fish to harvest in

the usual and accustomed places of harvest. United States

v. Washington, 853 F3d 946, 964 (9th Cir 2017), aff’d by

an equally divided court, 584 US 837 (2018) (“The Indians

Cite as 332 Or App 361 (2024) 383

reasonably understood Governor Stevens to promise not only

that they would have access to their usual and accustomed

fishing places, but also that there would be fish sufficient to

sustain them.”). The Tribe asserts that its treaty-protected

right to fish is a resource as to which there must be “no net

loss” under DCC 18.113.070(D).16

The issue before us on judicial review is not the

correctness of the Tribe’s assertion relating to the extent to

which the fishery resource guaranteed in the 1855 Treaty

must be considered by the board in evaluating Thornburgh’s

application, but whether the Tribe preserved the issue

before the board for review by LUBA. As counsel for the

Tribe stated at oral argument,

“If we weren’t stuck on the preservation issue, we might

be before the Court deciding whether or not the Treaty

imposes this positive obligation on the County or not. But

that’s not the issue before the Court today. The issue before

the Court today is has the Tribe made the requisite show-

ing to even have its day in court.”

For the reasons below, we agree with the Tribe that it has

made the requisite showing.

As the parties agree, “[a]n issue which may be the

basis for an appeal to the Land Use Board of Appeals shall

16

The Tribe asserted before LUBA that its treaty-protected fishery right is a

resource that is at risk of potential loss or degradation as a result of Thornburgh’s

project, which relies primarily on groundwater withdrawals. Those withdrawals,

the Tribe asserts, will drain aquifers underlying the project that have connectiv-

ity to surface water flows vital to the continued survival of at-risk fish species in

the Deschutes Basin. The Tribe doubts that Thornburgh’s proposal to mitigate

those negative impacts by buying and/or canceling existing water rights else-

where in the basin will sufficiently ensure that there will be enough water for fish

to survive in nearby streams, and to ensure that the water flow and temperature

will be sufficient to allow harvestable numbers of at-risk species of fish to survive

at the Tribe’s usual and accustomed fishing places during the proper time of year.

The Tribe asserts that the latter is necessary to sustain the fishery resource in

fulfillment of the Tribe’s treaty-protected right to that resource. The Tribe argued

before LUBA that despite multiple comments (including exhibits) and testimony

by the Tribe’s representative, Austin Smith Jr., providing indigenous knowledge

about the fish and wildlife resources of the Deschutes Basin, the board decision

concluded that the Tribe provided no “expert testimony” whatsoever, including

with respect to its treaty-protected fisheries and their associated habitats. The

Tribe asserted before LUBA that the board erred when it failed to consider the

Tribe’s treaty-protected right to the fishery resource in determining that there

would be no net loss or degradation as a result of Thornburgh’s proposed project.

384 Confederated Tribes of Warm Springs v. Deschutes Cty.

be raised not later than the close of the record * * * before the

local government[.]” ORS 197.797(1). The Tribe preserved its

arguments relating to the impact of the 1855 Treaty on the

“no net loss” determination before the board. The record,

including the Tribe’s three comment letters addressed to

the board and the Tribe’s representative’s testimony at the

February 1, 2023, public hearing, reflects that the Tribe

brought to the board’s attention the importance of consider-

ing the Tribe’s fishery resource as an aspect of the “no net

loss” standard. In a letter of January 31, 2023, the Tribe’s

representative, Austin Smith Jr., General Manager of the

Tribe’s Branch of Natural Resources, raised concerns about

the potential impact of the proposed 2022 FWMP on ESA-

listed fish species and about Thornburgh’s lack of consul-

tation with the Tribe, despite the Tribe’s status as a sover-

eign co-manager of the fisheries resources throughout the

Deschutes Basin. Smith also observed that technical exper-

tise was required to properly evaluate the complex issues

implicated by the proposed 2022 FWMP and that, while the

Tribe possessed technical expertise, it needed time assess

the issues and to consult its co-managers, ODFW and the

OWRD. In his letters to the board, Smith specifically raised

the issue of the Tribe’s treaty-protected rights as implicat-

ing resources under the “no net loss” standard.17 We note,

further, Smith’s March 1, 2023, letter to the board:

“[T]he Tribe does not currently have enough information

to evaluate whether [Thornburgh] can * * * demonstrate

that its water use and mitigation plan completely mitigates

negative impacts on the fishery resource so that there is

no net loss or net degradation of the resource. * * * Because

the fishery resources at issue are both treaty-protected

and vital to the Tribe’s cultural identity and existence, the

Tribe urges the Commission to resolve these questions in

favor of a more deliberate process.”

17

On January 3, 2022, Smith requested an extension of the record to allow

additional time for the Tribe, which had not previously received notification of

the application, to develop a response and provide additional information. With

Thornburgh’s agreement, the BOCC allowed an extension of the record for 30

days. The Tribe submitted materials to the BOCC, including a letter from Smith

on January 31, 2022, explaining the connection between the Tribe’s treaty-pro-

tected fishery resource and the “no net loss” standard. The hearing before the

BOCC occurred on the following day, February 1, 2023.

Cite as 332 Or App 361 (2024) 385

The standard for preservation of an issue for review before

LUBA “requires no more than fair notice to adjudicators and

opponents, rather than the particularity that inheres in judi-

cial preservation concepts.” Boldt v. Clackamas County, 107

Or App 619, 623, 813 P2d 1078 (1991). Contrary to LUBA’s

conclusion, the letters of January 31, 2023, and March 1,

2023, were legally sufficient to assert before the board that

the county must apply the “no net loss” standard so as to

encompass recognition of the 1855 Treaty and the Tribe’s

fishery resource, as historically recognized by the Tribe, to

“include the right to have fish to harvest in the usual and

accustomed places of harvest.” Washington, 853 F3d at 964.

We conclude that the board had fair notice of the Tribe’s

assertion that an evaluation of the “no net loss” standard

implicated consideration of the Tribe’s treaty-protected fish-

ery resource and, therefore, that the Tribe sufficiently pre-

served the issue before the board.

We further conclude that the Tribe sufficiently

raised the issue before LUBA. In its opening brief before

LUBA, the Tribe summarized its argument concerning

the Treaty: “[T]he County improperly construed the 1855

Treaty by failing to consider whether its approval of the

2022 FWMP violates the fishing clause in the 1855 Treaty,

which includes a right to fish habitat protection.” LUBA

viewed that argument as different from and insufficient to

raise the more precise argument that the Tribe stated in its

reply brief and at oral argument before LUBA, and which

it now raises on judicial review, that “proper application of

DCC 18.113.070(D) required the County to consider whether

the 2022 FWMP violates the fishing clause of the 1855

Treaty.” The Tribe’s argument in its opening brief before

LUBA was not so narrow. Implicit in the Tribe’s argument

that the board had approved the 2022 FWMP in violation of

the fishing clause of the 1855 Treaty was the contention that

the “no net loss” requirement of DCC 18.113.070(D) must be

construed to include consideration of the Tribe’s treaty fish-

ing rights. The Tribe made the latter point explicitly in its

argument under the second assignment:

“The [board] cannot conclude, as a matter of law, that ‘sys-

tem wide benefits’ (whatever that phrase may mean) sat-

isfy the no net loss standard in DCC 18.113.070(D) without

386 Confederated Tribes of Warm Springs v. Deschutes Cty.

expressly finding that the 2022 FWMP does not violate

either the 1855 Treaty or [other state law].”

Thus, we conclude that the Tribe adequately articulated

in its opening brief before LUBA that the treaty-protected

fishery resource is a resource to which there can be “no net

loss” or degradation under DCC 18.113.070(D), and that any

net loss to the Tribal fishery resource is a violation of DCC

18.113.070(D) and the 1855 Treaty. Further, in its reply brief

before LUBA, the Tribe clarified that position when it argued:

“The [board] and parties had fair notice that Tribe asserted

that the fish resources affected by the 2022 FWMP are

protected by the 1855 Treaty. The Tribe also demonstrated

that it understood that DCC 18.113.070(D) contains the

applicable approval criterion, which requires no net loss or

degradation of fish resources, including those protected by

the 1855 Treaty. The Tribe asserted treaty rights in the fish

resources of the Deschutes Basin, including an enforceable

right to take fish through the basin and the right to fish

habitat protection so that it would have fish to take.”

We conclude that the Tribe adequately preserved before the

board and presented to LUBA its arguments concerning the

relationship between the Tribe’s treaty rights and the “no

net loss” standard. LUBA erred in concluding otherwise.

In its second assignment of error, the Tribe con-

tends that LUBA’s order misapplied the substantial evi-

dence standard of review and is unlawful in substance in

failing to consider evidence supplied by the Tribe based on

its indigenous knowledge. We have held that LUBA prop-

erly deferred to the board’s narrow construction of DCC

18.113.070(D) that negative impacts are to be measured

only by the resort’s impact on the system, not the cumu-

lative impacts of drought or other basin-wide water pol-

icy and management issues. As for indigenous knowledge

related specifically to impacts of the resort, in its briefing,

the Tribe argued that “indigenous knowledge,” to which

the Tribe asserts the county paid short shrift, consisted of

the entirety of the comments and materials submitted by

the Tribe, including exhibits, and testimony from Smith,

regarding the fish resources of the Deschutes Basin. At oral

argument before us, the Tribe argued that if the Tribe had

Cite as 332 Or App 361 (2024) 387

had sufficient time for preparation for the hearing before the

board, it could also have presented as indigenous knowledge

evidence concerning the impact of the resort’s pumping on

very specific seasonal fishing grounds.

On this assignment, we are guided by our standard

of review, under which we consider only whether LUBA

correctly applied the substantial evidence standard in its

determination that the county’s decision demonstrates that

the county considered the Tribe’s evidence concerning indig-

enous knowledge and weighed the Tribe’s evidence against

Thornburgh’s evidence. Given the limited record before the

county, we conclude that LUBA did not err.

But, assuming that LUBA remands the case to the

board for consideration of the Tribe’s arguments relating to

the treaty-protected fishery resource on the first assignment

of error, we highlight that remand will allow an opportunity

for the Tribe to present evidence of indigenous expertise

and knowledge for the board’s consideration that the Tribe

asserts it did not have adequate time to present due to its

late involvement in the proceedings.

VII. THORNBURGH’S CROSS-PETITION RELATING

TO LUBA’S REMAND OF GROUNDWATER

COMPLIANCE PROVISIONS

In its cross-petition, Thornburgh challenges LUBA’s

order determining that groundwater compliance measures

and reporting requirements set forth in the 2022 FWMP

are insufficient. Thornburgh contends that LUBA’s order is

unlawful “in procedure,” because the board and weighed the

evidence in the record as the factfinder in the first instance,

rather than reviewing for substantial evidence.

As to groundwater compliance, Section D of the

2022 FWMP provides:

“For any future rights that may be acquired, compliance

occurs upon the cessation of pumping of the rights and along

with any of the following: deed evidencing the transfer of

ownership, a submittal to OWRD of any of the following:

(i) an assignment of the water right to Thornburgh, (ii) an

application that seeks OWRD approval of a transfer to

388 Confederated Tribes of Warm Springs v. Deschutes Cty.

pump at the Resort property, or (iii) a cancellation in-lieu

of mitigation.”

(Emphasis added.) LUBA agreed with Bishop’s contention

that the compliance provision was inadequate to meet the

“no net loss” standard to the extent that it permitted only a

“submittal” to OWRD of an application for an assignment of

a water right to Thornburgh, rather than an actual approval

of an assignment of the water right.

LUBA said in its order, “We agree with Bishop that

the county’s findings are inadequate to explain why submit-

tal to OWRD is sufficient to satisfy the no net loss stan-

dard with respect to groundwater sources for fish habitat

mitigation.” LUBA further concluded, “Thornburgh has not

pointed to any evidence supporting a conclusion that ground

water right certificate ownership, cessation of pumping,

and OWRD submittal is sufficient to ensure fish mitigation

water will be provided as assumed in the 2022 FWMP.”

Thornburgh contends in its cross-petition that

LUBA misunderstood the compliance provision. Thornburgh

asserts that there is much evidence in the record that it is

the cessation of pumping of any newly acquired ground-

water interest that results in mitigation, by allowing the

water to remain in the aquifer in support of fish habitat,

and that the additional documentation required by an appli-

cation to the OWRD merely reinforces the cessation of use

of the water. We have reviewed the record and conclude that

LUBA correctly applied the substantial evidence standard

in its evaluation of the compliance and reporting require-

ments. We therefore reject Thornburgh’s contention on its

cross-petition.

Reversed and remanded to LUBA on petition of The

Confederated Tribes of the Warm Springs Reservation of

Oregon, for consideration of Tribe’s first assignment of error

to LUBA; affirmed on cross-petition; otherwise affirmed.