Board begins remand review of Thornburg resort fish-and-wildlife plan; groundwater, economics and tribal treaty issues focus of proceedings

The Deschutes County Board of Commissioners convened a hybrid remand hearing May 7 on the Thornburg destination resort’s 2022 Fish and Wildlife Management Plan (FWMP) after multiple rounds of appeals to the Land Use Board of Appeals (LUBA) and the Oregon Court of Appeals. The county is required to make additional findings on three specific issues remanded by LUBA and the court: groundwater mitigation/no-net-loss of fish habitat, whether the plan changes trigger additional economic analysis, and whether the FWMP violates treaty-reserved fishing rights.

Staff and counsel framed the proceeding as a limited remand, not a full de novo review of the resort’s approvals. Jacob Ripper, principal planner, summarized the remand issues and said the board’s prior order limited new evidence to one topic: the economic analysis relating to the removal of an optional golf course. The board allowed testimony only from persons who participated in earlier proceedings, though staff agreed to accept evidence from any party who believed they had prior participation and would verify standing.

Three technical and legal themes dominated the nearly three-hour public hearing:

1) Groundwater mitigation and the “no net loss” standard: Applicant representatives said the revised FWMP reduces total authorized water use (by removing an optional golf course) and relies on acquisition and retirement or control of groundwater rights so pumping ceases and groundwater remains available to discharge to springs and streams. Applicant counsel argued that ownership and cessation of pumping constitute the mitigation event and that the plan provides a net benefit to habitat quality and quantity. Opponents and tribal representatives disagreed, saying the record lacks species-by-species evidence of current resource status, spatial/temporal habitat needs, or modeling that addresses drought and low-flow years. The tribe and others argued that existing modeling assumptions, model resolution and climate variability were not adequately addressed for a treaty-based analysis.

2) Economic analysis: The Court of Appeals remand added a question of whether removing a golf course was a substantial change requiring updated economic findings. The applicant submitted a new economic report (John Burns-style analysis) showing small reductions in golf-related payroll and housing demand but overall projected net fiscal benefits and job creation similar to those previously found in a 2005 Peterson analysis. Opponents argued the resort’s projected tax benefits and employment need closer scrutiny on net public service impacts (especially schools) and whether resort homes would be primarily seasonal or year-round.

3) Tribal treaty and indigenous knowledge: The Confederated Tribes of Warm Springs — represented by attorneys and tribe natural resource staff — asked the board to reopen the record and allow new evidence on treaty-protected fisheries, arguing LUBA and the Court of Appeals specifically advised that the tribe be allowed to present its indigenous expertise on remand. Tribe counsel contended the FWMP does not demonstrate, for each treaty-protected species, that mitigation will prevent a net loss in harvestable populations. The tribe urged the county to obtain targeted information from tribal co-managers and ODFW and recommended the county use independent technical review to evaluate the science.

Procedural rulings and next steps: After public testimony and agency input, the board set an open record period for new evidence addressing the economic analysis (the single topic LUBA authorized new evidence on). The schedule the board adopted: new economic evidence and testimony by May 21 (4:00 p.m.), rebuttal by May 28 (4:00 p.m.), and final legal argument (applicant only) by June 4 (4:00 p.m.). The final county decision under the remand timeline must be issued by August 5, 2025. Several parties asked for a longer reopening of the record; the board limited new evidence to the economic topic but accepted written submissions and said staff will verify prior participation for persons seeking to testify on remand.

Who spoke: The hearing drew extensive participants: applicant counsel Ken Katsaroff and applicant Cameron Delashmet; tribal attorneys Ellen Grover and Josh Newton and tribal natural resource staff; ODFW submitted a written letter and signaled technical concerns; interveners and local conservation groups including Central Oregon Land Watch and multiple private residents presented objections and asked for additional study. County planning staff and legal counsel advised the board on procedural constraints and deadlines.

What the board must decide: The county’s task on remand is comparatively narrow: resolve the three issues LUBA and the Court of Appeals identified and make findings supported by the record or reopen the record in the ways the courts directed. The hearing record will include large technical submittals already before LUBA and limited new economic evidence the board now authorized. Opponents warned that if the county proceeds without thoroughly addressing tribal and technical evidence, the decision risks further appeal. Proponents said the FWMP as amended offers net benefits by relying more on groundwater-based mitigation rather than warm surface water mitigation.

Staff will post instructions for submitting documents and evidence; the board’s deadlines for the remand record were set to meet the 120-day remand timeline. The hearing will continue administratively through written submissions and the final decision is expected prior to the August 5 remand deadline.