281 P.3d 644
Or. Ct. App.2012Background
- Respondents challenge LUBA's remand of Deschutes County's approval of Mark Latham Excavation's expanded mining operation, including headwall mining restrictions.
- County granted CUP to expand mining ( pumice and potentially tuff) but imposed Condition 20 prohibiting further headwall mining until a post-acknowledgement plan amendment and new ESEE analysis are completed.
- PTMG (Program to Meet the Goal) and associated ESEE analysis were adopted in 1990 under Goal 5 planning for mineral resources, including a surface mining zone with various mitigation requirements.
- LUBA previously remanded in 2010 (Hoffman v. Deschutes County) for clearer explanation of tuff mining as incidental to pumice mining; later, LUBA held no ambiguity in PTMG prohibiting headwall mining as currently interpreted.
- On remand in 2011-2012, the county determined that mining the headwall was not contemplated in 1990, thus requiring a new ESEE analysis, and maintained Condition 20 to prohibit headwall mining until amendments are completed.
- LUBA sustained objections to Condition 20, concluding the PTMG contained no explicit limitation on headwall mining and the county’s interpretation was not plausible under the proper standard of deference.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LUBA erred in applying Siporen to uphold the county’s plausible interpretation | Latham contends LUBA misapplied the Siporen standard and should defer to the county’s interpretation. | Deschutes County argues its interpretation is plausible under PGE/Gaines and Siporen, considering text and context beyond the PTMG’s silence. | Yes; court finds county’s interpretation plausible and reverses LUBA. |
| Whether silence in the PTMG creates ambiguity permitting headwall mining | PTMG silence cannot be read to authorize headwall mining; ambiguity should not be created by context alone. | Silence in the PTMG, read with ESEE decision and goals, supports a restrictive interpretation prohibiting headwall mining absent new analysis. | Yes; silence can create ambiguity, but interpretation remains plausible. |
| Whether a new ESEE analysis is required before headwall mining can be allowed | County cannot require a new ESEE analysis to prohibit headwall mining; PTMG permits mining elsewhere under existing analysis. | County properly concluded that the 1990 ESEE analysis did not contemplate headwall mining and a new analysis is necessary. | Yes; county may require a new ESEE analysis and condition 20 remains a plausible response. |
Key Cases Cited
- Siporen v. City of Medford, 349 Or 247 (2009) (deference to local interpretation if plausible under express language)
- State v. Gaines, 346 Or 160 (2009) (interpretive analysis of legislative intent; context and history aid meaning)
- PGE v. Bureau of Labor and Industries, 317 Or 606 (1993) (interpretation standards for regulatory language under Oregon law)
- Columbia Steel Castings Co. v. City of Portland, 314 Or 424 (1992) (reasons for Goal 5 decisions must exist when PTMG is adopted)
- Callison v. LCDC, 145 Or App 277 (1996) (ESEE analyses need not be fully articulated for every resource location)
- Multnomah Cty. Employees Union v. Multnomah Cty., 176 Or App 323 (2001) (silence in statutory text can create ambiguity)
- Plankinton v. State, 62 Or App 554 (1983) (silence can create ambiguity in statutory interpretation)
- Foland v. Jackson County, 215 Or App 157 (2007) (LUBA decisions about deadlines and regulatory interpretation)
- Siegert v. Crook County, 246 Or App 500 (2011) (deference to county's interpretation under Siporen framework)
- Western Land & Cattle, Inc. v. Umatilla County, 230 Or App 202 (2009) (interpretive standards for land use regulations in Oregon)