Oregon Shores Conservation Coalition v. Coos County

In 2015, intervenor applied to construct a liquefied natural gas (LNG) export terminal adjacent to an estuary. The county approved the application, LUBA remanded the county’s decision, the Court of Appeals affirmed LUBA’s decision, and the Supreme Court denied review. In 2019, intervenor (1) requested that the county initiate proceedings on remand and (2) applied for a conditional use permit (CUP) for various additions and modifications to the LNG terminal. The county re-approved the LNG terminal and approved the CUP. These appeals followed.

Under ORS 215.435, if a county does not receive a request from an applicant to initiate proceedings on remand within 180 days of “final resolution of the judicial review,” the county must “deem the application terminated.” Intervenor’s request that the county initiate proceedings on remand was “submitted” more than 180 days after the Supreme Court denied review, but less than 180 days after the Court of Appeals issued its appellate judgment and LUBA issued its notice of appellate judgment. Petitioners argued that the Supreme Court’s decision was the “final resolution of the judicial review” for purposes of ORS 215.435 and that the county therefore erred in initiating proceedings on remand. LUBA agreed with petitioners that LUBA’s notice of appellate judgment was simply a notice, and did not constitute a resolution or decision. However, because appellate judgments render effective decisions on the merits, award attorney fees and costs, formally end appellate jurisdiction over matters, and transfer authority over matters to other bodies; and because, under the Oregon Rules of Appellate Procedure, appellate judgments issue only after the period for filing a petition for review or a petition for reconsideration expires (i.e., when judicial review is over), LUBA agreed with the county that an appellate judgment is the “final resolution of the judicial review” for purposes of ORS 215.435. Nonetheless, because the county found only that intervenor’s request to initiate proceedings on remand was “submitted” less than 180 days after the Court of Appeals issued its appellate judgment, and because there was no date stamp or evidence indicating when the county actually “received” the request for purposes of ORS 215.435, LUBA agreed with petitioners that remand was necessary for the county to adopt more adequate findings.

Intervenor’s applications proposed dredging within a deep-draft navigation channel in the estuary to allow tankers to access the LNG terminal. Under Coos Bay Estuary Management Plan (CBEMP) Policy 5(I), which implements Statewide Planning Goal 16 (Estuarine Resources), Implementation Requirement 2(b), dredging is allowed in the estuary only if it will not “unreasonably interfere with public trust rights.” Because it adopted exceptions to Goal 16 in the early 1980s, the county concluded that CBEMP Policy 5(I) did not apply. Petitioners argued that, because the county applied CBEMP Policy 5(I) in the prior proceedings, it was precluded from revisiting that issue under the “law of the case” doctrine articulated in Beck v. City of Tillamook. LUBA agreed that the county was precluded from revisiting the issue, but because of the “goal post rule” at ORS 215.427(3). LUBA also agreed with petitioners that the county’s Goal 16 exceptions did not obviate the need to comply with CBEMP Policy 5(I) because those exceptions were adopted before the public trust language was added to Goal 16.

Alternatively, the county concluded that CBEMP Policy 5(I) was satisfied. The United States Coast Guard (USCG) declared that it would impose a “security zone” around each LNG tanker from which all other vessels would be prohibited without USCG authorization. Although the security zone would have been wider than most of the estuary, the county concluded that it would not “unreasonably interfere with public trust rights” because both the common law and statutory navigation rules prioritize tanker navigation over other uses. LUBA concluded that, although the common law prioritizes navigation over fishing, it does not prioritize different vessels that are both navigating. And while the navigation rules prioritize tanker navigation over smaller boat navigation within the deep-draft navigation channel, the safety zone would have impacted smaller boats outside the channel. LUBA therefore agreed with petitioners that neither the common law nor the navigation rules supported the county’s conclusion that CBEMP Policy 5(I) was satisfied.

The county also concluded that CBEMP Policy 5(I) was satisfied because the USCG would have regularly allowed boats to pass through the security zone. The county relied on testimony from a retired USCG security expert regarding how the USCG would likely operate the security zone. LUBA disagreed with petitioners that testimony from current USCG officials was essential to support the county’s conclusion and, while petitioners cited other evidence that boats would not have been allowed to pass through the security zone, resulting in delays, the choice between conflicting evidence belongs to the local government. However, because the retired USCG expert’s testimony and the findings did not address specifically whether the security zone would create a bottleneck at the mouth of estuary at high tide, when it is safest to transit the mouth and when large fleets of boats might be trying to transit at once, LUBA agreed with petitioners that the county’s findings were inadequate and not supported by substantial evidence.

In addition, the county concluded that CBEMP Policy 5(I) was satisfied because (1) a “majority” of tanker transits would be at night and (2) only loaded tankers would need to transit the mouth of the estuary at high tide. Because testimony indicated that intervenor would merely prioritize nighttime transits and that tanker pilots prefer nighttime transits, whereas testimony indicated that the USCG controls transit times and prefers daytime transits, and because a 2008 USCG suitability report to which intervenor was required to adhere indicated that all tankers transits would be at high tide, LUBA agreed with petitioners that the county’s findings were inadequate and not supported by substantial evidence.

Petitioners argued that the county erred by failing to adopt findings addressing certain scientific expert testimony. LUBA reiterated that, so long as the evidence on which a local government relies is substantial, the local government is generally entitled to choose between conflicting expert testimony and is not required to adopt findings addressing conflicting evidence. In addition, while remand may be necessary where the findings indicate that a local government was unaware of conflicting expert testimony, a petitioner must identify the specific issue on which the conflicting expert testimony focused, identify the expert testimony on which the local government relied, and demonstrate that LUBA cannot adequately resolve certain challenges absent findings addressing the conflicting expert testimony. Here, the county mentioned some of the scientific expert’s testimony, so they were likely aware of the rest of it. Because petitioners did not identify any scientific disputes, explain how those disputes related to approval criteria, or explain why LUBA could not resolve any challenges absent findings addressing the conflicting scientific expert testimony. Accordingly, petitioners’ argument provided no basis for reversal or remand.

Intervenor’s applications proposed a wastewater treatment facility to treat wastewater from both the terminal and associated workforce housing. The facility would have discharged 3,000 gallons per minute of treated wastewater, via a pipeline, to an ocean outfall. Under Coos County Zoning and Land Development Ordinance (CCZLDO) 4.3.210(76)(f), which implements Statewide Planning Goal 11 (Public Facilities and Services), “sewer systems” are prohibited outside urban growth boundaries. Petitioners argued that the wastewater treatment facility, pipeline, and ocean outfall were a “sewer system” and that the county therefore erred in approving them without adopting an exception to Goal 11. Under OAR 660-011-0060(1)(f), which also implements Goal 11, a “sewer system” is a sanitary system “that serves more than one lot or parcel.” Because petitioners cited evidence suggesting that the terminal and workforce housing were on multiple noncontiguous parcels, LUBA agreed with petitioners that remand was necessary for the county to address that issue in the first instance.

The pipeline for the wastewater treatment facility would have crossed a rural area in the 7-Development Shorelands (7-D) zone. Under CCZLDO 3.2.286, “low-intensity” and “high-intensity” utilities are generally allowed in the 7-D zone, but utilities are only allowed in rural areas subject to CBEMP Policy 50. Under CBEMP Policy 50, only “low-intensity facilities and services traditionally enjoyed by rural property owners” are allowed in rural areas. Under CCZLDO 2.1.200, “high-intensity” utilities include “treated waste water outfalls.” The county concluded that the pipeline was allowed in a rural area under CBEMP Policy 50 because it was a “low-intensity facility for supplying wastewater services at a level no greater than that traditionally enjoyed by rural property owners.” However, the county concluded that the pipeline was allowed in the 7-D zone under CCZLDO 2.1.200 and 3.2.286 because it was a “high-intensity” utility. Petitioners argued the county erred in failing to reconcile its conclusions that the pipeline was simultaneously a “low-intensity” utility and a “high-intensity” utility. Intervenor responded that there was a conflict between CBEMP Policy 50 and CCZLDO 3.2.286 that the county was entitled to resolve via interpretation. Because the findings did not demonstrate that the county even recognized the conflicts between CBEMP Policy 50, CCZLDO 2.1.200 and 3.2.286, LUBA disagreed with intervenor that the county resolved those conflicts via interpretation. Accordingly, remand was necessary for the county to adopt such an interpretation in the first instance. Remand was also necessary for the county to address petitioners’ argument that a pipeline discharging 3,000 gallons per minute is not allowed under CBEMP Policy 50 because it is not a facility “traditionally enjoyed by rural property owners.” Although intervenor argued that the volume of discharge from the pipeline had nothing to do with that inquiry, LUBA pointed out that the county considered the “level” of wastewater services supplied by the pipeline in concluding that the pipeline satisfied CBEMP Policy 50.

The subject property was within the Southern Oregon Regional Airport (SORA) overlay zone. Intervenor’s applications proposed modifying the original terminal design to relocate a gas processing plant closer to the glide-slope of the airport. Under CCZLDO 4.11.445(4), industrial uses in the SORA overlay zone may not “cause emissions of smoke, dust or steam that could obscure visibility within airport approach surfaces.” In concluding that CCZLDO 4.11.445(4) was met, the county relied on a study considering the impact of thermal plumes from the gas processing plant on the airport. Petitioners argued that, because that study was based on the original location of the gas processing plant, the county’s conclusion was not supported by substantial evidence. Because there was no evidence regarding thermal plumes at the new location of the gas processing plant, LUBA agreed with petitioners.

The county conditioned its approval on intervenor obtaining all “necessary” state and federal permits. After the county issued the decisions, intervenor applied for waivers of various federal permitting requirements. Petitioners argued that those applications were inconsistent with the county’s condition of approval. LUBA agreed with intervenor that the applications were consistent with the condition because, if the federal government granted the waivers, then those permits would no longer be “necessary” for purposes of the condition. Although this argument provided no basis for reversal or remand, for the reasons explained above and others not worth mentioning here, the county’s decision was REMANDED.