Confederated Tribes Coos v. City of Coos Bay, LUBA No. 2020-012
| Decision Date | 04 May 2021 |
| Docket Number | LUBA No. 2020-012 |
| Parties | CONFEDERATED TRIBES OF COOS, LOWER UMPQUA and SIUSLAW INDIANS, Petitioner, and CITIZENS FOR RENEWABLES, ROGUE CLIMATE, JODY MCCAFFREE, and OREGON SHORES CONSERVATION COALITION, Intervenors-Petitioners, v. CITY OF COOS BAY, Respondent, and JORDAN COVE ENERGY PROJECT L.P., Intervenor-Respondent. |
| Court | Oregon Land Use Board of Appeals |
FINAL OPINION AND ORDER
Appeal from City of Coos Bay.
Rick Eichstaedt filed a petition for review and reply brief and argued on behalf of petitioner.
Tonia Moro filed a petition for review and reply brief and argued on behalf of intervenors-petitioners Citizens for Renewables, Rogue Climate, and Jody McCaffree.
Anuradha Sawkar filed a petition for review and reply brief and argued on behalf of intervenor-petitioner Oregon Shores Conservation Coalition. Also on the brief was Crag Law Center.
No appearance by City of Coos Bay.
Seth J. King and Steven L. Pfeiffer filed the response briefs. Also on the briefs were Nikesh J. Patel and Perkins Coie LLP. Seth J. King argued on behalf of intervenor-respondent.
RUDD, Board Chair; RYAN, Board Member; ZAMUDIO, Board Member, participated in the decision.
You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.Opinion by Rudd.
Petitioner appeals a city council decision approving (1) a plan map amendment and reasons exception to change the designation of 3.3 acres within the Coos Bay Estuary from a natural management unit to a development management unit and (2) uses and activities permits to allow new and maintenance dredging in the redesignated area and a temporary pipeline to transport dredge spoils to disposal sites.
Intervenor-respondent Jordan Cove Energy Project L.P. (JCEP) and intervenors-petitioners Citizens for Renewables, Jody McCaffree, and Rogue Climate (collectively, Citizens) filed motions to take official notice. We address them below.
In 2018, petitioner proposed the nomination of the Q'alya ta Kukwis Shichdii me Traditional Cultural Property Historic District to the National Register of Historic Places. JCEP requests that we take official notice of a July 2, 2019 letter from the National Park Service (NPS) returning petitioner's proposed nomination (NPS Decision).
We may take notice of the official acts of the executive departments of the United States. ORS 40.090(2);1 Blatt v. City of Portland, 21 Or LUBA 337, 341,aff'd, 109 Or App 259, 819 P2d 309 (1991), rev den, 314 Or 727 (1992). However, the motion for official notice must explain the relevance of the document to an issue in the appeal. Tualatin Riverkeepers v. ODEQ, 55 Or LUBA 688 (2007). JCEP argues that the NPS Decision "is an official act of a federal agency because it determines the status of the proposed National Register nomination for the [historic district]" and asserts that it is "offering the item as an official act of an agency relevant to matters raised by petitioner." JCEP's Motion to Take Official Notice 2-3. We agree that the decision is an official act of a federal agency, but JCEP does not explain the decision's relevance to any issue in the appeal, apart from its general assertion to that effect. Furthermore, JCEP's description of the circumstances that it believes form the basis for the NPS Decision sets out adjudicative facts of which we have no authority to take official notice. Tualatin Riverkeepers, 55 Or LUBA at 692.
The motion is denied.2
Intervenor-petitioner Citizens for Renewables asks that we take official notice of the Department of Land Conservation and Development's (DLCD's) February 19, 2020 decision objecting to JCEP's certification of compliance with the federal Coastal Zone Management Act (CZMA). We take notice of the executive actions of the state pursuant to ORS 40.090(2) and the motion is granted.
Citizens for Renewables also asks that we take official notice of (1) JCEP's notice of appeal of the DLCD CZMA Decision to the United States Department of Commerce (CZMA Override Application) and (2) a petition that JCEP filed with the Federal Energy Regulatory Commission (FERC), seeking a waiver of the federal requirement to obtain a Clean Water Act (CWA) permit (CWA Bypass Application). JCEP's CZMA Override Application and CWA Bypass Application are documents created by a corporation and are not members of a class of documents identified as eligible for official notice in ORS 40.090. The motion is denied.
LUBA may "take evidence not in the record in the case of disputed allegations in the parties' briefs concerning * * * procedural irregularities not shown in the record and which, if proved, would warrant reversal or remand of the decision." OAR 661-010-0045(1). Citizens for Renewables requests that wetake the (1) DLCD CZMA Decision, (2) CZMA Override Application, and (3) CWA Bypass Application as "evidence of procedural irregularities corroborating those disclosed in the record and others not disclosed by the record." Citizens for Renewables' Motion to Take Official Notice and Motion to Take Evidence 4. These are the same three documents of which Citizens for Renewables requested that we take official notice.
Citizens for Renewables argues that the DLCD CZMA Decision, of which we have taken official notice, corroborates evidence in the record. Providing additional evidentiary support to that already in the record is not a basis for granting a motion to take evidence. Citizens for Renewables also argues that the DLCD CZMA Decision supports its position that the city's conditions of approval are inadequate but, even if that were true, the decision would not reflect a procedural irregularity requiring the consideration of additional facts. Citizens for Renewables has not established the existence of disputed facts related to procedural irregularities which, if proved, would warrant reversal or remand. The motion to take the DLCD CZMA Decision as extra-record evidence is denied.
Citizens for Renewables argues that the CZMA Override Application and CWA Bypass Application establish procedural irregularities because they show that JCEP failed to inform the city of its intent to file those documents. Only the local government is capable of committing "procedural irregularities" within the meaning of OAR 661-010-0045(1) and, accordingly, actions by an applicant cannot give rise to procedural irregularities supporting a motion to take evidence.ODOT v. Coos County, 34 Or LUBA 805, 807 (1998). The motion to take the CZMA Override Application and CWA Bypass Application as extra-record evidence is denied.
We denied similar motions regarding the CZMA Override Application and the CWA Bypass Application in Citizens for Renewables v. Coos County, ___ Or LUBA ___, ___ (LUBA No 2020-003, Feb 11, 2021) (slip op at 6-8), and Oregon Shores Conservation Coalition v. Coos County, ___ Or LUBA ___, ___ (LUBA Nos 2019-137/2020-006, Dec 22, 2020) (slip op at 6-9). However, we concluded that, because no party disputed certain bare facts, the parties could cite those facts in support of their arguments, even in the absence of a successful motion to take evidence. The following facts are undisputed:
Similarly, in this appeal, we will consider references to those undisputed circumstances in the parties' arguments.
The city and other local governments have approved various applications related to JCEP's proposal to construct a natural gas liquefaction facility and liquefied natural gas (LNG) export terminal (LNG terminal) at Jordan Cove, located within the Coos Bay Estuary.3 See, e.g., Oregon Shores Conservation Coalition v. City of North Bend, ___ Or LUBA ___ (LUBA No 2019-118, July 17, 2020); Oregon Shores Conservation Coalition v. Coos County, ___ Or LUBA ___ (LUBA Nos 2019-137/2020-006, Dec 22, 2020). Jordan Cove is located approximately seven miles inland from the mouth of the estuary. To export the LNG, JCEP proposes to use large, deep-draft LNG tankers, which will access the terminal site via an existing federal navigation channel. The LNG tankers will transit the estuary via the navigation channel approximately 240 times per year (120 tankers per year going to and from the ocean, for a total of 240 transits).
State law generally requires that professional pilots direct the navigation of large commercial vessels entering or exiting the estuary, including theproposed LNG tankers. ORS 776.405(1)(a) (); ORS 776.025(3) (). Pilots board an inbound or outbound vessel and then direct the vessel safely through the estuary via the navigation channel. However, as discussed below, in certain weather conditions, including fog and high winds, the pilots may deem it unsafe to pilot a vessel through the channel due to existing constraints at several points along the channel.4
The existing navigation channel is 300 feet wide and dredged to a depth of 37 feet. The undredged areas of the estuary average approximately 10 feet in depth. The channel enters the...
To continue reading
Request your trial