Old Hazeldell Quarry, LLC v. Lane County , 323 Or. App. 120 ( 2022 )

120
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted on September 27; on petition, reversed and remanded; on
cross-petition, affirmed December 7, 2022
OLD HAZELDELL QUARRY, LLC,
Respondent
Cross-Petitioner,
v.
LANE COUNTY,
Respondent
Cross-Respondent,
and
SAVE TV BUTTE,
Linda McMahon, Tim Caughlin,
Keegan Coughlin, Jenny Caughlin,
Kevin Matthews, Michael Garvin,
Patricia Beard, Cascadia Wildlands,
and LandWatch Lane County,
Petitioners
Cross-Respondents.
Land Use Board of Appeals
2021102; A179203
Charles W. Woodward, IV, argued the cause for petitioners-
cross-respondents. On the briefs was Sean T. Malone.
Seth J. King argued the cause for respondent-cross peti-
tioner Old Hazeldell Quarry, LLC. Also on the brief were
Steven L. Pfeiffer and Perkins Coie LLP.
No appearance for respondent-cross-respondent Lane
County.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
Nonprecedential Memo Op: 323 Or App 120 (2022) 121
JOYCE, J.
On petition, reversed and remanded. On cross-petition,
affirmed.
122 Old Hazeldell Quarry, LLC v. Lane County
JOYCE, J.
Intervenors Save TV Butte et al seek review of an
order of the Land Use Board of Appeals (LUBA), arguing
that LUBA incorrectly reversed a decision of the Board of
County Commissioners for Lane County (the county) that
denied applicant’s application for a comprehensive plan
amendment, adoption of comprehensive plan and zoning
map amendments, and approval of a site plan for a quarry.1
In a cross-petition, applicant contends that LUBA incor-
rectly denied, in part, its motion to take evidence outside
the record. On review, we consider whether LUBA’s order
is “unlawful in substance or procedure,” ORS 197.850(9)(a).
We reverse and remand on the petition and affirm on the
cross-petition.
Because the background facts, procedural history,
and relevant legal framework are well known to the par-
ties and LUBA, we do not discuss them here. In the order
at issue, the county applied OAR 660-023-0180(5)(a) to (g)
to determine whether mining was permitted on the site.
It determined that, given that intervenors had not previ-
ously contended that there was evidence indicating that the
impact area should extend beyond 1,500 feet of the bound-
aries of the mining area, they had waived any argument to
that effect and, consequently, the relevant impact area was
the area within 1,500 feet of the boundaries of the mining
area. See OAR 660-023-0180(5)(a) (explaining how to deter-
mine the impact area). A previous LUBA remand estab-
lished that the county’s designation of a substantial part
of the impact area as Goal 5 big game habitat meant that
those parts of the impact area were “Goal 5 resource sites
within the impact area” that had to be addressed as part of
the county’s consideration of “existing or approved land uses
within the impact area that will be adversely affected by
proposed mining operations.” OAR 660-023-0180(5)(b)(D).
Thus, the first issue before the county was whether
the big game habitat in the impact area would be adversely
affected by the proposed mining operation, and what con-
flicts would arise. OAR 660-023-0180(5)(b). The evidence in
1
The county has waived appearance.
Nonprecedential Memo Op: 323 Or App 120 (2022) 123
the record on that subject was presented in several reports
of Robison, applicant’s wildlife biologist; a report and a letter
from Goodell, intervenors’ wildlife biologist; and two letters
from Yee, the South Willamette Watershed District Wildlife
Biologist for the Oregon Department of Fish and Wildlife
(ODFW). The county found that the big game habitat in the
impact area would be adversely affected by the proposed
mining operation, and the main conflicts that it identified
were (1) a collision conflict (risk of vehicles hitting big game);
(2) a displacement conflict (for elk, who would leave the big
game habitat in the impact area for most of the 20 to 50
years during which the mine was active); and (3) a direct-
loss-of-habitat conflict (for deer, who would remain in the big
game habitat in the impact area but would suffer significant
detrimental effects in foraging, overwintering, and fawning
due to the nearby mining operations).
Having identified those three conflicts, the county
considered whether the conflicts could be minimized through
“reasonable and practicable measures.” OAR 660-023-0180
(5)(c). As relevant for that analysis, to “ ‘[m]inimize a conflict’
means to reduce an identified conflict to a level that is no
longer significant.” OAR 660-023-0180(1)(g).
For the collision conflict, the county determined
that the applicant’s proposed condition of approval number
50, which required road signs warning of elk and deer and
the need to drive 25 miles per hour or less in certain areas,
would minimize the conflict. For the other two conflicts—
the displacement conflict and the direct-loss-of-habitat
conflict—the county adopted facts and analysis from Yee’s
letters, and, based on those facts and that analysis, ulti-
mately concluded that the conflicts were significant and
would not be minimized by the measures identified by
applicant.
Yee’s letters were written in response to Robison’s
testimony, and, to understand them, it is first necessary to
understand Robison’s testimony. Robison, the applicant’s
wildlife biologist, opined that the mining operation would
likely cause the deer and elk living in the big game habitat to
leave the impact area—“relocate”—“temporarily,” by which
he meant “during periods of time when [mining] activities
124 Old Hazeldell Quarry, LLC v. Lane County
are occurring (6 days/week for up to 50 years).” The reloca-
tion would be caused by “disturbance,” a concept that encom-
passes effects of both noise and, as Robison noted, other
“anthropogenic activities.”2 In his most direct explanation
of why the deer and elk would leave the big game habitat
in the impact area, Robison explained that “it is likely that
surface mining activity, and related increases in vehicle and
human traffic, will result in elk movement away from the
site, potential abandonment by pre[-] and post-calving cows
in the event that a calving site is located within the project
area, potential decreases in local reproduction, and possible
increases in local mortality[.]”
However, in Robison’s view, for a variety of reasons,
the displacement conflict—the fact that, in his view, deer and
elk would leave the big game habitat in the impact area—
was not significant, and, thus, did not need to be minimized.
In support of that view, he pointed out that the elk could
move from the Goal 5 big game habitat in the impact area to
adjacent national forest land. He explained that, “[a]lthough
Roosevelt Elk currently using * * * the impact area will be
impacted via disturbance and these disturbance impacts
may subject these elk to increased stress hormone response,
decreased birth rates and other behavioral responses,” the
conflict was nevertheless not significant because “we believe
that any elk using the area will at some point in time likely
redistribute themselves within their home ranges as needed
to adjust to increased disturbance levels and carry out life
history needs.” He noted that any decreases in reproduc-
tion in the impact area “would not significantly impact the
Oakridge population for Roosevelt Elk” and that herds often
change composition, suggesting that elk from the impact
area could join other local herds. He also noted that min-
ing activities in the impact area would take place in three
phases, allowing more time for deer and elk to adjust to the
2
“Anthropogenic” means “involving the impact of human beings on nature
: induced or altered by the presence and activities of human beings.” Webster’s
Third New Int’l Dictionary 93 (unabridged ed 2002).
Some of Robison’s statements are ambiguous as to whether the “disturbance”
that will cause displacement is caused by noise alone, or also encompasses other
factors. However, his testimony as a whole makes clear that “disturbance,” as
a term both in the relevant literature and in his own analysis, refers to conse-
quences of human activity including more than noise alone.
Nonprecedential Memo Op: 323 Or App 120 (2022) 125
new levels of disturbance; because some of the impact area
was close to areas of high human activity already, the deer
and elk were already highly adapted to “noise and distur-
bance from localized anthropogenic activities”; and some
of the big game range in the impact area was classified as
“impacted range,” the lowest quality habitat for big game.
For all those reasons, Robison asserted that, under
the circumstances, the displacement conflict—that is, his
conclusion that elk would leave the Goal 5 big game habitat
in the impact area—was not “significant.” In his view, then,
minimization through “reasonable and practicable measures”
was not strictly necessary. See OAR 660-023-0180(5)(b), (c)
(requiring identification and minimization of conflicts);
OAR 660-023-0180(1)(g) (to “ ‘[m]inimize a conflict’ means
to reduce an identified conflict to a level that is no longer
significant”).
Despite Robinson’s conclusion that minimization
measures were not needed, applicant proposed four condi-
tions of approval (Conditions 21-24) that would use a variety
of strategies to achieve compliance with noise regulations
promulgated by the Department of Environmental Quality
(DEQ). In response, intervenors argued that the conditions
were not useful for minimizing conflicts because the DEQ
noise standards were set with the goal of protecting humans
in industrial settings, not avoiding disruption to wildlife. In
response, Robison explained the purpose of the conditions
as follows:
“The reference to conditions of approval designed to
ensure compliance with the DEQ noise regulations was
added to our original analysis to provide further require-
ments for reducing noise at the site and therefore reducing
the potential for noise related disturbance to big game liv-
ing within the impact area. The use of DEQ noise control
measures was added to lessen the magnitude of any impacts
from noise; it was not intended to establish the DEQ rule
as a ‘safe harbor’ as applied to wildlife. We maintain our
position that in our best professional judgment, compliance
with these conditions will help minimize conflicts with big
game in the quarry impact area.”
(Emphases added.)
126 Old Hazeldell Quarry, LLC v. Lane County
With that background in mind, we turn to the two
letters from Yee, the ODFW district biologist, on which the
county relied in its order. Yee agreed with Robison’s conclu-
sion that elk would be displaced from the big game habitat
in the impact area as a result of the mining activities. He
referred to the displacement of the elk as an indirect loss of
habitat; that is, the Goal 5 big game habitat in the impact
area would indirectly be lost because the elk would not use it
for 20 to 50 years due to the mining activities. Yee explained
that, contrary to Robison’s view that the displacement of elk
for 20 to 50 years the mine was in operation was “tempo-
rary,” in his view, that displacement, and the consequent
indirect loss of habitat, should be considered long term.
Yee also disagreed with Robison about deer, con-
cluding that the deer and elk would be affected by the min-
ing activity in different ways, rather than in the same way.
He explained that, unlike elk, deer in the impact area would
not likely “relocate outside of their home ranges even when
disturbance occurs.” Thus, he concluded, the deer would
remain in the Goal 5 big game habitat in the impact area
rather than moving elsewhere. As a result, he explained,
the disturbance from the nearby mining activity—the same
disturbance that, as Robison had explained, would cause
the elk to relocate—would directly affect the deer in the
impact area, causing significant consequences to “foraging,
overwintering, and fawning.” For that reason, he, and the
county, in its findings, referred to the third conflict, regard-
ing deer, as a direct-loss-of-habitat conflict: The deer would
remain in the Goal 5 big game habitat in the impact area,
but the mining activities would make it unsuitable for them.
That unsuitability, and the consequent effects on the ability
of the deer to forage, overwinter, and reproduce in the big
game range in the impact area would, functionally, cause
that Goal 5 big game habitat to be lost.
Yee also noted that ODFW was concerned that the
conflicts between big game habitat and the mining activ-
ity would extend beyond 1,500 feet from the mining area
boundaries. Finally, Yee disagreed with Robison that the
elk would relocate to adjacent national forest land, explain-
ing that that land “is extremely poor quality elk habitat.” In
Nonprecedential Memo Op: 323 Or App 120 (2022) 127
his view, the elk would move to nearby private lands, and
he noted that the potential consequences of the relocation
included damage to private property, additional elk mor-
tality from hunting, and a greater burden on ODFW. Yee
did not note whether those consequences would take place
only outside the impact area or both inside and outside the
impact area.
Yee noted that ODFW was “concerned” about the
displacement conflict, and he noted that “[t]he proposed
Conditions of Approval (21-24) do not seem to address the
issue of displacement other than those impacts related to
noise.” Yee’s recommendations included the following:
“Further discussion and mitigating measures regarding
the potential for displacement. The proposed Conditions of
Approval [ ] do not adequately address concerns for dis-
placement or concerns related to habitat loss [based on the
fact that the elk would not occupy the big game habitat
in the impact area for 20 to 50 years and the deer would
occupy it but suffer adverse effects] and the resulting direct
[(to deer)] and indirect [(to elk)] impacts in both the short
and long-term life of the project.”
In its order, the county characterized Robison’s opin-
ion as being that “disturbances associated with increases in
ambient noise levels” would cause “temporary displacement
of big game.” It summarized its understanding of the rea-
sons that, in Robison’s opinion, although the displacement
would occur, it nevertheless would not be significant:
“Mr. Robison reached this conclusion because the hab-
itat within the impact area would remain intact, the deer
and elk in the area naturally move within home ranges
that extend beyond the impact area (in fact, well beyond the
impact area in the case of elk), mining activities would be
phased in over time (which would allow deer and elk time
to adjust), the area is already highly disturbed by human
activity (due to an active railroad, active airstrip, nearby
residences, Highway 58, recreational activities such as
mountain biking and hiking, and urban development asso-
ciated with the City of Oakridge), the fact that the County
itself has deemed the western half of the impact area as
‘Impacted Big Game Range,’ which is the ‘lowest quality
habitat and has essentially been “written off” for Big Game
128 Old Hazeldell Quarry, LLC v. Lane County
management,’ and implementation of the noise mitigation
measures set forth in COA 21, 22, 23, and 24, which would
minimize noise conflicts with big game in the impact area.”
However, based on Yee’s letters, the county rejected
Robison’s contention that the conflicts regarding elk (dis-
placement) and deer (direct loss of habitat) were not signifi-
cant. It noted that, in contrast to Robison, Yee believed “the
impacts are long-term and measurable.” The county agreed
with Yee’s conclusion that “the mining activities create
impacts that will adversely affect the nearby Big Game hab-
itat.” Ultimately, the county found that Yee’s letters
“demonstrate that mining activities would result in con-
flicts to Big Game and that the applicant’s proposed con-
ditions of approval are inadequate to sufficiently minimize
significant conflicts to Big Game. Specifically, the [County]
finds that the measures proposed by the applicant, includ-
ing Conditions of Approval 21-24, are insufficient to reduce
the conflicts with Big Game habitat (specifically, the likely
displacement of resident elk herds and loss of habitat to
deer and elk) such that the conflicts are no longer signifi-
cant, as required by OAR 660-023-0180.”
Having concluded that the displacement and
loss-of-habitat conflicts were significant and would not
be minimized by the proposed conditions of approval, the
county went on to perform the analysis of economic, social,
environmental, and energy consequences (ESEE analysis)
required by OAR 660-023-0180(5)(d). See OAR 660-023-
0010(2) (defining ESEE analysis); OAR 660-023-0180(5)(c)
(“If reasonable and practicable measures are identified to
minimize all identified conflicts, mining shall be allowed at
the site and subsection (d) of this section is not applicable.
If identified conflicts cannot be minimized, subsection (d)
of this section applies.”). After conducting that analysis, it
decided not to allow mining at the site.
Applicant sought LUBA review. Applicant made
two arguments about the conflict and minimization find-
ings: It contended, first, that the county’s findings were gen-
erally inadequate for LUBA’s review, and second, that Yee’s
letters, on which the findings were based, did not qualify
as substantial evidence to support the findings. Applicant
did not contend that there was no evidence in the record
Nonprecedential Memo Op: 323 Or App 120 (2022) 129
to support the board’s conclusion. Instead, its substantial
evidence argument was that Yee’s letters in particular were
not substantial evidence and, accordingly, did not provide
support for the county’s findings. Thus, applicant’s substan-
tial evidence argument was actually a more particularized
contention that the county’s findings were inadequate.
LUBA addressed only the substantial evidence
argument. LUBA explained that applicant made three
arguments in support of the conclusion that Yee’s letters
were insufficiently reasoned to qualify as “evidence that a
reasonable person would rely on in making a decision.” See
Dodd v. Hood River County, 317 Or 172, 179, 855 P2d 608(1993) (describing substantial evidence). First, applicant
argued that Yee had acknowledged that the conditions of
approval addressed “conflicts from noise” by stating, “The
proposed Conditions of Approval (21-24) do not seem to
address the issue of displacement other than those impacts
related to noise.” In applicant’s view, Yee’s statement did
not adequately explain why “if [it is true that the conditions
addressed noise], Robison’s predicted conclusion (that there
would be less displacement as a result of reducing noise
impacts) does not follow.”
Second, apparently based on Yee’s characterization
of the conflict as to the deer habitat as involving a direct
loss of habitat, applicant argued that Yee’s letters evaluated
displacement from the mining area itself, not just from the
1,500-foot impact area, and, consequently, a reasonable per-
son would not rely on Yee’s letters with respect to displace-
ment in the impact area. Third, applicant argued that Yee’s
letters also evaluated displacement conflicts more than
1,500 feet from the mining area boundaries—and, conse-
quently, outside the impact area—and that, given that the
letters were ambiguous in that respect, a reasonable person
would not rely on them to support a finding that there was a
conflict inside the impact area.
LUBA concluded that Yee’s letters “are not evi-
dence a reasonable person would rely on to conclude that
conflicts from displacement of deer and elk due to noise
from the mining operation cannot be minimized to an insig-
nificant level.” LUBA agreed with applicant that Yee had
130 Old Hazeldell Quarry, LLC v. Lane County
acknowledged that conditions of approval 21 to 24 addressed
conflicts due to noise (again, in his statement that “[t]he pro-
posed Conditions of Approval (21-24) do not seem to address
the issue of displacement other than those impacts related
to noise”) and held that, given that, Yee’s letters were “not
evidence a reasonable person would rely on to conclude that
conflicts from noise cannot be minimized to an insignificant
level.” LUBA also agreed with applicant that Yee’s letters
“are ambiguous regarding the extent to which ODFW’s
evaluation of conflicts is limited only to conflicts with Big
Game Range in the impact area, as required by OAR 660-
023-0180(5)(c).” LUBA cited statements in Yee’s first let-
ter indicating that ODFW jurisdiction extends beyond the
impact area and that, in ODFW’s view, to limit the analysis
to 1,500 feet from the boundary of the mining area did
not accurately reflect the consequences of the conflicts. It
also noted that Yee’s second letter discussed consequences
of the displacement of the elk, some of which would take
place outside the impact area. Finally, LUBA held that
Yee’s second letter was not evidence on which a reasonable
person would rely because it “discusses other impacts that
are both speculative and indirectly related to the mining
operation”—specifically, the consequences of the displace-
ment of the elk from the big game habitat in the impact
area. LUBA stated that those consequences—which Yee had
noted would include damage to agricultural lands, fences
and other features on private property, additional workload
for ODFW, and negative impacts on ODFW’s damage pro-
gram—“are * * * not relevant conflicts because they are not
tied to the impact area.”
LUBA thus rejected the county’s reliance on Yee’s
letters. Because those letters were the main evidence on
which the county had relied to support its findings that the
displacement and direct-loss-of-habitat conflicts existed,
were significant, and would not be minimized by conditions
of approval 21 to 24, LUBA reasoned that those findings
were not supported by substantial evidence in the whole
record.3 See Dodd, 317 Or at 179 (substantial evidence exists
3
Given applicant’s arguments, described above, we understand LUBA’s
conclusion to indicate that the county did not adequately explain its reasoning,
rather than representing an (unrequested) evaluation of all of the evidence in the
Nonprecedential Memo Op: 323 Or App 120 (2022) 131
when the record “would permit a reasonable person to make
that finding”). LUBA also stated, “On remand, the county’s
analysis of conflicts with Big Game Range in the impact
area must be limited to conflicts from displacement of deer
and elk from the impact area due to noise from the mining
operations, which is the only identified cause of displace-
ment that is supported by the record.”
Intervenors seek review, contending that LUBA
incorrectly stated and applied its standard of review. They
contend that LUBA’s determination that Yee’s letters did
not constitute substantial evidence was based on an incom-
plete and incorrect view of both the letters and the other
evidence in the record. They also take issue with LUBA’s
statement, in describing the scope of remand, that noise is
the only cause of the displacement and direct-loss-of-habitat
conflicts.
On review, our task is not to assess for ourselves
whether Yee’s letters constituted substantial evidence;
rather, the question for us is whether LUBA correctly under-
stood and applied its standard of review. Younger v. City of
Portland, 305 Or 346, 358, 752 P2d 262 (1988). “[W]here
LUBA has properly understood and applied the ‘substantial
evidence’ test of ORS 197.835[(9)(a)], a reviewing court should
affirm its order, notwithstanding the reviewing court’s dis-
agreement with LUBA as to whether the evidence is ‘sub-
stantial.’ ” Id.; see also ORS 197.850(8) (“The court may not
substitute its judgment for that of [LUBA] as to any issue of
fact.”). However, “[t]he evidence in a particular case might
be so at odds with LUBA’s evaluation that a reviewing court
could infer that LUBA had misunderstood or misapplied its
scope of review, and reversal or remand might be proper.”
Younger, 305 Or at 359.
As noted above, the question before LUBA was
whether Yee’s letters, viewed in the context of the record as
a whole, was evidence on which a reasonable person would
record. See Citizens for Responsibility v. Lane County, 218 Or App 339, 345, 180
P3d 35 (2008) (in an ordinary substantial evidence challenge, “LUBA considers
all the evidence in the entire record in evaluating whether a factual finding is
supported by substantial evidence and determines whether a reasonable person
could make that finding”).
132 Old Hazeldell Quarry, LLC v. Lane County
rely. See Dodd, 317 Or at 179 (“Substantial evidence exists to
support a finding of fact when the record, viewed as a whole,
would permit a reasonable person to make that finding.”).
Here, LUBA’s conclusion that Yee’s letters were not substan-
tial evidence resulted from a misapplication of its standard
of review: LUBA considered Yee’s letters out of their neces-
sary context, specifically, Robison’s submissions on the same
issue, to which Yee’s letters were responding.
Viewed in context with Robison’s submissions, Yee’s
letters (1) agreed with Robison’s conclusion that the min-
ing activity, including both noise and the other “anthropo-
genic activities” of the mining operation, would cause the
elk to leave the Goal 5 big game habitat in the impact area;
(2) explained that, contrary to Robison’s assertion that the
deer would also leave the impact area, the deer would stay
and suffer direct negative consequences from the same dis-
turbance; and (3) noted that, although Robison acknowl-
edged that the broader concept of disturbance would cause
the displacement of the elk (and, as Yee explained, the direct
consequences to the deer, which would stay in the impact
area), applicant’s proposed conditions did not address dis-
turbance as a whole but only noise. With that understand-
ing, Yee’s letters support the conclusion that, even assuming
conflicts based on noise alone were minimized by conditions
of approval 21 to 24 (which, as explained above, Robison did
not assert that they were), the displacement and direct-loss-
of-habitat conflicts were not minimized by those conditions
because those conflicts were not caused by noise alone.
Another result of considering Yee’s letters out of
the context of the record as a whole was that LUBA mis-
understood why the letters discussed consequences of the
displacement conflict that would take place outside the
1,500-foot impact area. As noted above, the letters indicated
that, in ODFW’s view, the impact area should be extended
beyond 1,500 feet from the boundaries of the mining area.
See OAR 660-023-0180(5)(a) (impact area “shall be limited
to 1,500 feet from the boundaries of the mining area, except
where factual information indicates significant potential
conflicts beyond this distance”). Before the county, inter-
venors argued the same thing. The county concluded that
that argument was foreclosed given the procedural posture
Nonprecedential Memo Op: 323 Or App 120 (2022) 133
of the case. That determination by the county, and the con-
sequence that Yee’s letters included information supporting
an argument that the county ultimately rejected, has no
effect on the reliability of the rest of the letters’ analysis.
Finally, LUBA’s failure to consider the letters in
context led to its incorrect conclusion that various conse-
quences that Yee identified—damage to agricultural lands,
fences, and other features on private property, additional
workload for ODFW, and negative impacts on ODFW’s
damage program “are * * * not relevant conflicts because
they are not tied to the impact area.” As explained above,
Robison concluded, and Yee and the county agreed, that the
elk would leave the Goal 5 big game habitat in the impact
area. Robison contended that that conflict was insignificant
because the elk would simply relocate to adjacent national
forest land.
We will accept, for the sake of argument, the view
that the significance of a conflict between Goal 5 wildlife
habitat and a proposed use that causes wildlife to vacate the
Goal 5 wildlife habitat depends on whether the wildlife can
occupy other areas instead.4 Given that assumption, one of
the questions for the county was whether the displacement
conflict, which the biologists agreed existed, was significant
because it would have adverse consequences other than
the displacement itself. Robison’s view was that it was not,
because the elk could relocate to the adjacent national for-
est land and join other herds. In the letters, Yee responded
to that view by explaining that the adjacent national for-
est land was “extremely poor quality elk habitat” and that
the elk would relocate to nearby private lands instead. He
explained that, in the past, ODFW had worked to break
up large herds on private lands in the area, because they
caused damage. As a result, in his view, the conflict was
significant because the relocation to private lands would
cause significant consequences to the private landowners
4
We understand Yee’s description of the conflicts as involving indirect (for
the elk) and direct (for the deer) loss of habitat to be a rejection of that view.
However, as explained below, Yee’s letters also respond to Robison’s argument on
its own terms by indicating that, even if the analysis considers only whether the
relocation of the elk will cause significant consequences apart from the relocation
itself, the conflict is still significant.
134 Old Hazeldell Quarry, LLC v. Lane County
and ODFW. Regardless of whether the consequences that
he identified were directly relevant to the analysis given the
county’s conclusion that, for procedural reasons, the impact
area was limited to 1,500 feet from the boundaries of the
mining area, his explanation was nevertheless fully respon-
sive to Robison’s contention that the displacement conflict
was not significant. Yee’s inclusion of that information thus
did not undermine the reliability of his conclusions.
Because LUBA considered Yee’s letters out of con-
text, it misunderstood their significance and, in turn, did
not correctly evaluate whether they were evidence on which
a reasonable person would rely. Thus, LUBA misapplied
its standard of review and, consequently, its decision was
unlawful in substance. ORS 197.850(9)(a); Younger, 305 Or
at 358.
We also briefly consider LUBA’s statement that, “[o]n
remand, the county’s analysis of conflicts with Big Game
Range in the impact area must be limited to conflicts from
displacement of deer and elk from the impact area due to
noise from the mining operations, which is the only identified
cause of displacement that is supported by the record.” As set
out above, 323 Or App at 131, in its description of Robison’s
testimony in the order, the county characterized Robison’s
testimony as being that the disturbance that would cause
the displacement was “associated with increases in ambient
noise levels,” rather than recognizing that Robison’s testi-
mony was that noise and other human activity would cre-
ate disturbance that would cause the elk to relocate. As we
have explained, Yee understood Robison’s conclusion about
displacement to rest on both noise and other anthropogenic
activity, and he agreed with that assessment (at least as to
the elk). The county’s characterization of Robison’s testi-
mony as going to noise alone, on one hand, and its reliance
on Yee’s testimony and reasoning, which was based on Yee’s
agreement with Robison’s conclusion that displacement
would result from more than noise alone, on the other hand,
suggest that the order is internally inconsistent. However,
contrary to LUBA’s statement about the scope of remand,
noise is not the only identified cause of displacement that is
supported by the record. We leave it to LUBA, on remand,
Nonprecedential Memo Op: 323 Or App 120 (2022) 135
to determine the appropriate next steps. We reverse and
remand on the petition.
Next, we consider the cross-petition, in which appli-
cant challenges LUBA’s failure “to grant [applicant’s] request
to take depositions and discovery” that, applicant believed,
would reveal evidence of two commissioners’ bias against
applicant and the application.5 We reject the argument in
the cross-petition as inadequately developed for our review.
Even assuming the correctness of applicant’s view that,
under ORS 197.835(2)(b) and OAR 665-010-0045(1), LUBA
lacks discretion to deny a motion to take evidence outside
the record under certain circumstances, including those
presented here, applicant’s argument fails to grapple with,
or even acknowledge, the text of OAR 661-010-0045(2),
which contains a variety of requirements that must be met
in order for LUBA to order discovery. In the absence of any
argument from applicant about how those requirements are
satisfied, we are in no position to address applicant’s argu-
ment on the merits. See Beall Transport Equipment Co. v.
Southern Pacific, 186 Or App 696, 700-01 n 2, 64 P3d 1193,
adh’d to as clarified on recons, 187 Or App 472, 68 P3d 259
(2003) (“[I]t is not this court’s function to speculate as to
what a party’s argument might be” or “to make or develop a
party’s argument when that party has not endeavored to do
so itself.”). Thus, we affirm on the cross-petition.
On petition, reversed and remanded. On cross-
petition, affirmed.
5
Applicant sought to depose two of the county commissioners, and also
sought an unspecified number of requests for production, the contents of which
were also unspecified.