A Cause for Legislative Intervention

The need for HB 2027A

This is the first time that the State of Oregon has ever considered abolishing State Scenic Waterway protections. Legislative action is necessary in order to:

  • Maintain permanent river protection under the Oregon Scenic Waterways Act.
  • Fix the rigged and inept public process undertaken by BPRD and OPRD. 
  • Restore transparency.
  • Respect private property rights. 
  • Respect the intent of Oregon voters. 

A group of Bend conservationists and homeowners in this area of the Upper Deschutes reached out to local legislators during the 2017 Session. Their intent was to notify the Legislature of BPRD and OPRD's attempt to change longstanding environmental protections on the Upper Deschutes.

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“It’s unfortunate that you’re the guinea pigs on this, but you’re very helpful guinea pigs” 
— Chris Havel, Bend Bulletin, Dec. 10, 2016. Bridge Question Spurs Look at River Development Rules.

What they asked for...

A statute that mirrors the current bridge prohibition under OAR 736-040-0073. 

  • This solution will strengthen protection of the upper Deschutes by elevating the longstanding bridge prohibition under OAR 736-040-0073 from an Oregon Administrative Rule to an Oregon Revised Statute.
  • The Deschutes Scenic Waterway has other specific statutory protections and provisions in place.  (In addition to protections that exist under the OARs).   For instance, boating permits and management of the lower Deschutes are regulated by statute. These conservationists envisioned the proposed statute functioning in a similar way.

Why this is necessary...

BPRD and OPRD have taken improper and inept actions.

1. BPRD's proposed amendment violates the conservationist intent of the Oregon Scenic Waterways Act. 

  • Although the Act envisions recreation, it does not allow recreational development at the expense of environmental integrity. 

    • The Act explicitly requires preservation of outstanding waterway values for present and future public benefit.  See ORS 390.815

    • The purpose of the Act is broad.  Aside from recreation, the Act requires that primary agency emphasis shall also be given to protecting the “aesthetic, scenic, fish and wildlife, [and] scientific” qualities of scenic waterways.  See ORS 390.845(1).

    • OPRD recognized the broad purpose of the Act in an internal document, stating, “Scenic waterways are not intended to accommodate bank recreation as such, but to protect the view from the river, and fish and wildlife qualities of the waterway.” 

  • OPRD recognizes that its proposal to abolish the Upper Deschutes bridge prohibition will harm the integrity of the Upper Deschutes Scenic Waterway.  How do we know this?

    • During the first meeting of the UDAG, Chris Havel confirmed that OPRD does not consider any data in rulemaking.  See UDAG Session 1 Facilitation Record

    • The Oregon Department of Fish and Wildlife publicly commented in October 2015 that new bridges and trails in the affected area would bring high user traffic and degrade wildlife habitat.  See ODFW comment.

    • OPRD recognized in an internal document that allowing new bridges in the Upper Deschutes Scenic Waterway “May encourage development in an area where natural resources would be harmed (in contravention of scenic waterway goals).” Staff Findings, Upper Deschutes Scenic Waterway Rule Amendment Request, Feb. 1, 2016. pg. 4.

    • OPRD explicitly stated in an internal document that its proposed rule amendment “Weakens current level of scenic and natural protection for this river segment.” Upper Deschutes Discussion Outline.pdf, pg. 1.

    • OPRD’s own emails recognize concern that increasing use is a “lead problem, and doing anything which increases visitor flow even more will degrade the corridor.”  Chris Havel email. Dec. 2016.

    • South_UGB_Bridge_Issue_Summary.pdf  - NOTE – this is a BPRD document.

      • A bridge in the area desired will most likely need a mid-stream pier, requiring excavation and fish habitat/wetlands destruction. (pg 2).

      • The potential bridge site is in a mapped floodplain and also contains “seasonal wetland” and Spotted Frog habitat (pg. 2).

2. A “risky experiment” with “unknown consequences.”  OPRD and BPRD's plan to abolish scenic waterway protection would result in an insidious erosion of the Act.  Which State Scenic Waterway will be next? 

  • Abolishing scenic waterway protections will steadily erode the Oregon Scenic Waterways Act over time. 
  • OPRD has explicitly recognized its approach as a “risky experiment” with “unknown consequences.” Upper Deschutes Discussion Outline.pdf, pg. 2. 
  • OPRD and BPRD know their plans will cause harm to the Upper Deschutes and rivers Statewide.  Nevertheless they have persisted with their agenda to abolish protections in the Upper Deschutes Scenic Waterway. 
  • To this point, OPRD has stated that “Pursuing trail goals first, and placing scenic waterway goals second, could accelerate the rate of visible change on the Upper Deschutes and call into question the strength and durability of a scenic waterway designation statewide.” Staff Findings, Upper Deschutes Scenic Waterway Rule Amendment Request, Feb. 1, 2016.  pg. 6. 

Disregard for a public process

1. OPRD’s first disregard for public process –  Preordained Agenda.  Changing OAR 736-040-0073 has always been OPRD’s objective. 

  • OPRD is pushing a preordained agenda to change OAR 736-040-0073 and has not meaningfully considered public comment. 
  • This process began with OPRD publishing a rulemaking notice in Oregon Bulletin, Dec. 2015. This shows that OPRD’s intent from the very beginning was to amend the rule.   OPRD could have begun its process with a rules advisory committee, but instead went straight to rulemaking. 
  • Chris Havel’s telling statement - “It’s unfortunate that you’re the guinea pigs on this, but you’re very helpful guinea pigs.” Dec. 10, 2016.  
  • Havel’s statement speaks for itself; OPRD’s objective is not to listen to the public, but to see how much of its “risky agenda” it can force on the public (the “guinea pigs”). OPRD wants to change the law, not seek public input. OPRD isn’t looking to serve Oregonians, but rather appease a fellow parks authority. 

2. OPRD’s second disregard for public process-  The initial rulemaking and public comment period, beginning October, 2015.  

  • During the initial public comment period, comments opposed to amending OAR 736-040-0073 strongly outnumbered those in favor.  Almost, but not quite, 2 to 1. 
  • OPRD was aware of the adverse effects of allowing bridges and trails in the Upper Deschutes and proceeded anyway.
    • After wrap-up of the initial public comment period, OPRD recognized that allowing new bridges in the Upper Deschutes Scenic Waterway “May encourage development in an area where natural resources would be harmed (in contravention of scenic waterway goals).” Staff Findings, Upper Deschutes Scenic Waterway Rule Amendment Request, Feb. 1, 2016. pg. 4.
  • OPRD disregarded public concern and instead instituted UDAG.

    • In response to a Don Horton email calling the public “ill-informed,” Havel sarcastically referred to public concern as “accusations of rampant death.” Oct. 6, 2015.  This was the same month OPRD published its rulemaking notice in the Oregon Bulletin.

    • OPRD further recognized that “Comments against the amendment also expressed concern for possible harm to fish and wildlife from increased use and structures in the riparian area.” Staff Findings, Upper Deschutes Scenic Waterway Rule Amendment Request, Feb. 1, 2016. pg. 4.

3. OPRD’s third disregard for public process - UDAG

  • Despite strong public opposition to its proposed amendment, OPRD initiated a new round of comments through UDAG.  OPRD, at the request of BPRD, made efforts to exclude the public in order to get the answers it wanted.

  • OPRD intentionally excluded affected parties from UDAG. 

    • Affected property owners and HOAs were excluded from UDAG.  Kevin Keillor, a Bend attorney and affected property owner, documented this frustration in an email to Chris Havel.  Jan. 26, 2017.

    • Keillor stated “Despite my request to be included on the UDAG to represent Sunrise Village, your department excluded riverfront property owners including Sunrise Village, and instead invited only governmental agencies, recreation advocates, and two Neighborhood Associations (these groups neighborhoods recognized by the City of Bend and not property owners). Notably no wildlife protection or river conservation non-profits are represented on UDAG. I understand that only after much prodding Judy Clinton was later added to the group and is the only private property owner represented. The composition of UDAG reflects a clear preference for recreation interests over the other values, and my understanding is that the facilitator initially told members that they could only consider recreational values.”

    • In an internal email, Havel explicitly stated that UDAG was a closed process, but suggested opening UDAG “just enough to show that things will be fair, thorough and rational.” (emphasis added). See Havel email Sept. 30, 2016.

    • Havel’s subsequent emails indicated that DOJ informed him rulemaking advisory committees must be made public.  Havel’s response?  “That’s a twist I didn’t anticipate…”  Email, Oct. 3, 2016.  This shows that Chris Havel intended that UDAG remain CLOSED to the public.

    • Community Solutions of Central Oregon referred to interested persons and HOAs as “UDAG crashers,” and indicated it would be “firm” with these parties at meetings. Gary Winterstein email, Dec. 16, 2016.

    • Chris Havel has tried to disguise UDAG as a broad rule assessment process, and not as a special push for abolishing the bridge prohibition.  The problem?  Community Solutions of Central Oregon designed a survey addressing only the bridge rule.  To skirt this, Havel requested that Community Solutions of Central Oregon add other Upper Deschutes rules to the survey prompt “To keep us from getting captured.” Email, Dec. 2, 2016.

4. To execute UDAG, OPRD hired Community Solutions of Central Oregon, a private consulting firm.  This firm has been an unfair and inept partner.

  • Community Solutions of Central Oregon indicated it would keep UDAG meetings non-public.  In an internal email, this firm referred to interested public parties as “UDAG crashers.”  Exhibit B, Hit 5.  Gary Winterstein email, Dec. 16, 2016.   
  • This firm has provided open-ended, vague, and leading survey questions.  Keillor email, Jan. 26, 2017. 
  • This firm scheduled meetings at inopportune times, resulting in low attendance.  See emailDec. 5, 2016, Chris Havel email discussing how Judy could not attend a meeting.
  • This firm has had technical problems receiving public information.  See recent Judy emails expressing frustration about survey not working. 
  • OPRD itself has expressed frustration with the competence of this firm.  See email. Dec. 5, 2016.  Jean Jancaitis of OPRD stated “I was not terribly impressed with Gary’s presentation.”
  • The poor work of Community Solutions of Central Oregon has severely compromised public input in UDAG. 

5. OPRD has not been forthright in depicting UDAG as a precursor to rulemaking. 

  • Despite OPRD’s assertions that UDAG is only a precursor to rulemaking, it has treated UDAG as part of the rulemaking process.
  • In its final staff findings for the Upper Deschutes scenic waterway rule amendment, OPRD lists an option entitled, “Leave the rule unchanged and restart the amendment process with a rules advisory committee, looking at all the rules covering the River Community segment of the Upper Deschutes State Scenic Waterway”
  • This option later became the UDAG.
  • Taken together with OPRD’s persistent disregard for public process, this language shows that OPRD has always considered UDAG as part of the amendment process.  Any assertions to the contrary by OPRD are misleading. 

6. Disregard for Private Property and Illegal Exercise of Eminent Domain:

  • OPRD has demonstrated bias against property owners.  Jean Jancaitas of OPRD has explicitly expressed disdain for property owners.  In an internal email, Jancaitas stated that she was frustrated at her perception that “home owners who live next to the river’s comments would be weighted more than comments from the general public [during UDAG].”  Jancaitas continued, “The Act was intended for public benefit, not just for wealthy private property owners.”    Dec. 5, 2016. 
  • BPRD has publicly stated its intent to exercise eminent domain.  OPRD should be aware of this intent.  See DRT South UGB Purpose and Need – Draft #5. 
  • OPRD’s rule change would materially advance BPRD’s exercise of eminent domain for a recreational trail.  Without the rule change, BPRD could not complete its bridge and trail plans. 
  • We view this material advancement as an illegal, de facto exercise of eminent domain by OPRD. 
    • Oregon law expressly forbids OPRD from exercising eminent domain for the purpose of acquiring recreational trails.  See ORS 390.989

    • Yet, OPRD has explicitly recognized that BPRD’s proposed bridge and trail would promote OPRD’s recreational trail mandate under ORS 390.956. - Staff Findings, Upper Deschutes Scenic Waterway Rule Amendment Request, Feb. 1, 2016. pg. 3. 

    • This is the same recreational trail mandate for which OPRD is expressly DENIED eminent domain authority under ORS 390.989.

7. Legal burden on property owners.

  • If the proposed bridge and trail go through, property owners may be found negligent toward people using the trail.  In the absence of a trail, these people would simply be trespassers.

  • The legislature cannot let a state agency and parks district forcibly impose this kind of legal liability on property owners in their own back yards. 

8. Disregard for Oregon Voters.

  • The Upper Deschutes Scenic Waterway was consciously set aside by Oregon voters.

  • OPRD’s piecemeal dismantling of environmental protection rules undermines voter intent and the purpose of the Oregon Scenic Waterways Act. 

The Result - HB 2027-1