1000 Friends of Oregon v. Wasco County Court

• Jurisdiction: Oregon
• Parties: 1000 FRIENDS OF OREGON, the assumed name of Oregon Land Use Project, Inc., an Oregon nonprofit corporation, Kelly McGreer, Rosemary McGreer, James G. Perkins, Shirlee Perkins, David Dickson, and Melinda Dickson, Respondents, v. WASCO COUNTY COURT, Respondent, David Knapp, Richard Dennis Smith, Kent Bullock, and Samadhi Matthews, Respondents Below, and City of Rajneeshpuram and Rajneesh Foundation International, formerly Chidvilas Rajneesh Meditation Center, Petitioners. 81-132; CA A39453.
• Citation: 1000 Friends of Oregon v. Wasco County Court, 723 P.2d 1039, 80 Or.App. 525 (Or. App. 1986)
• Court: Oregon Court of Appeals
• Decision Date: 06 August 1986

Page 1039

723 P.2d 1039

80 Or.App. 525

1000 FRIENDS OF OREGON, the assumed name of Oregon Land Use Project, Inc., an Oregon nonprofit corporation, Kelly McGreer, Rosemary McGreer, James G. Perkins, Shirlee Perkins, David Dickson, and Melinda Dickson, Respondents, v. WASCO COUNTY COURT, Respondent David Knapp, Richard Dennis Smith, Kent Bullock, and Samadhi Matthews, Respondents Below and City of Rajneeshpuram and Rajneesh Foundation International formerly Chidvilas Rajneesh Meditation Center, Petitioners.

81-132; CA A39453.

Court of Appeals of Oregon.

Argued and Submitted May 14, 1986.

Decided Aug. 6, 1986.

Corinne C. Sherton, Eugene, argued the cause for petitioners. With her on the brief was Rex Armstrong, Portland.

Robert E. Stacey, Jr., Portland, argued the cause for respondents. With him on the brief was Mark J. Greenfield, Portland.

No appearance for respondent Wasco Co. Court.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

WARDEN, Presiding Judge.

Rajneesh Foundation International and the City of Rajneeshpuram seek review of an order by which LUBA remanded to Wasco County its decision to authorize an election to incorporate the city. Under the terms of the remand from the Supreme Court, LUBA was to determine whether there was substantial evidence in the whole record to support the county's finding that "the area proposed for incorporation is not suitable for farm use." LUBA held that there was no substantial evidence for that finding. We reverse.

This case and its companion, 1000 Friends v. Wasco County Court, 80 Or.App. 525, 723 P.2d 1039 (decided this date), are the latest stage of a continuing challenge to the incorporation of Rajneeshpuram. See 1000 Friends of Oregon v. Wasco County Court, 299 Or. 344, 703 P.2d 207 (1985) (Wasco County IV ); 1000 Friends of Oregon v. Wasco County Court, 68 Or.App. 765, 686 P.2d 375 (1984), modified 299 Or. 344, 703 P.2d 207 (1984) (Wasco County III ); 1000 Friends of Oregon v. Wasco County Court, 67 Or.App. 418, 679 P.2d 320, withdrawn on rehearing in banc, 68 Or.App. 765, 686 P.2d 375 (1984) (Wasco County II ); 1000 Friends of Oregon v. Wasco Co. Court, 62 Or.App. 75, 659 P.2d 1001, rev. den. 295 Or. 259, 668 P.2d 381 (1983) (Wasco County I ). The background and previous history of the legal aspects of the Rajneeshpuram controversy can be found in those opinions. In Wasco County IV the Supreme Court rejected most of the challenges to the county's decision but held that two of them required further LUBA consideration. This case involves the county's determination that Goal 3 does not apply to its decision, because the land proposed for incorporation is not suitable for agricultural use and, therefore, is not agricultural land to which the goal is applicable. LUBA reversed and remanded that determination.

Because the Supreme Court's remand to LUBA sets the issues in this case, we must first determine the nature of the remand. We begin with an examination of the application of Goal 3 to the proposed incorporation. That goal requires the county to preserve and maintain agricultural lands "for farm use, consistent with existing and future needs for agricultural products, forest and open space." The goal required the county, in passing on an incorporation petition, to satisfy itself that it was reasonably likely that the proposed city, after incorporation, would comply with the goal. See Wasco County IV, 299 Or. at 359-360, 703 P.2d 207. However, the county needed to consider Goal 3 only if the proposed city consisted of "agricultural land" as defined by the goal:

"[Agricultural land] in Western Oregon is land of predominantly Class I, II, III and IV soils and in Eastern Oregon is land of predominantly Class I, II, III, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service, and other lands which are suitable for farm use taking into consideration soil fertility, suitability for grazing, climatic conditions, existing and future availability of water for farm irrigation purposes, existing land use patterns, technological and energy inputs required, or accepted farming practices. Lands in other classes which are necessary to permit farm practices to be undertaken on adjacent or nearby lands, shall be included as agricultural land in any event."

The county, in findings which respondents ¹ did not challenge, determined that the soil within the proposed city consisted of 61 percent Class VII and VIII soils, 35 percent Class VI soils and 4 percent Class II through IV soils. The county also found that the Class II-IV soils would be preserved for agricultural use, that the proposed city contained predominantly Class VII and VIII soils and that those soils were not suitable for farm use. The county did not consider Goal 3 issues any further, because under its findings the goal did not apply. If its findings are supportable, its action was correct.

The definition of agricultural lands appears to make Class I-VI soils automatically agricultural land; other lands may also be agricultural if they are suitable for farm use. In Wasco County IV, the court concluded that LUBA had erred in its previous decision by requiring that the county's suitability evaluation consider the entire ranch rather than simply the area proposed for incorporation. Because of that error, LUBA had not yet decided whether the county's determination met the Goal 3 suitability tests. The court then remanded the case so that LUBA could decide whether the county's finding that "the area proposed for incorporation is not suitable for farm use" was supported by substantial evidence in the whole record. ²

Although they do so now, respondents did not explicitly attack the adequacy of the county's findings on suitability for agricultural use of the area proposed for incorporation in their original appeal to LUBA. Instead, they attacked the evidentiary support for those findings, particularly the evidence supporting the county's finding that the lands would not support grazing without extensive reclamation. Their contention that the county's findings were not supported by substantial evidence, however, implicity also attacked some of the county's reasoning. Respondents recognized that reclamation was necessary in order for the lands to be suitable for grazing. They argued that, because the county had not shown that reclamation was impossible, the land was necessarily suitable other land and was therefore agricultural.

In short, respondents did not attack the county's explicit findings--with which, indeed, they generally agreed--but rather attacked its implicit finding that the reclamation necessary to restore the land to productivity was so difficult that it was impracticable. Respondents did not, however, challenge the county's failure to make this implicit finding an explicit one. Thus, when the Supreme Court remanded the case for a substantial evidence determination, it in effect asked LUBA to rule on the issue as respondents originally...