Court of Appeals sends proposed Redmond resort to land use board

Published 9:00 am Monday, May 6, 2024

: Arnold Palmer, left, visited Central Oregon in 2006 during the planning stages of a 45-hole golf course at Thornburgh Resort near Cline Buttes north of Bend. Palmer was to be among the designers of the course, but the project was delayed by the recession.

The Oregon Court of Appeals has sent back to a state land use board a case involving water use and the effects on wildlife the Confederated Tribes of Warm Springs and Thornburgh Resort would have.

This will be the fifth round of review for the case.

But this time, only one issue will be up for consideration: Whether the tribes adequately presented their case, that historic tribal treaty rights to fishing and hunting ought to be considered when discussing the impacts of Thornburgh’s water use.

The decision Wednesday is vindication for the tribes, whose contentions for involvement in the case have been largely ignored by decision makers — until now.

“We are pleased that the Court of Appeals understands the importance of ensuring that land use decision makers respect our treaty rights, co-management responsibilities, and sovereign interests when it comes to the fish resources of the Deschutes Basin,” Robert Brunoe, the chief executive officer and secretary treasurer for the tribes, said in a news release Wednesday.

The roughly 2,000-acre resort about 3 miles west of Redmond has been in the making for around two decades.

It’s set to be a 950-home residential resort community that includes a golf course, a lake, athletic and resort facilities and dining.

The case is one of many challenging Thornburgh. This one has been bounced across the state for more than a year.

First, a hearings officer in Deschutes County denied Thornburgh’s land use application in December 2022. The application sought modifications of a 2008 plan that ensures the resort’s water use will result in “no net loss” or degradation to fish and wildlife resources. Such a plan is required for destination resorts in Deschutes County.

The County Commission then overturned that decision in April 2023, which was when the tribes became involved to weigh in on the “no net loss” standard. The tribes asserted that treaty rights give the tribes unfettered access to hunting and fishing on ceded lands.

The majority of commissioners disagreed and approved the plan modifications.

That decision was then appealed to the Land Use Board of Appeals, a state agency that handles land use disputes, by five challengers: the tribes, local land use watchdog organization Central Oregon LandWatch and three local residents. Those were Annunziata “Nunzie” Gould, a longtime Thornburgh opponent, Paul Lipscomb, a former Marion County Circuit Court judge, and Thomas Bishop, a Deschutes County resident.

The land use board issued a 99-page decision in January rejecting the majority of the arguments from the five challengers and largely siding with the commissioners.

The board said the tribes didn’t adequately raise the issue before the county commissioners that rights embedded within the 1855 treaty ought to be considered. In February, the five parties appealed the state land board’s decision to the Court of Appeals.

The case will now return to the state land use board for consideration of the tribal issue it previously rejected, the appeals court ruled in a 36-page decision Wednesday.

“The Deschutes River and its tributaries are in our homelands, and we have lived and fished on these waters since time immemorial,” Brunoe said.

He added: “Our Tribal knowledge — both scientific and cultural — is essential to deliver a healthy fishery for our people.”

Despite LandWatch’s arguments being rejected for further review, Carol Macbeth, a staff attorney with the organization, said in an emailed statement that LandWatch was “gratified” by the appeals court’s decision.

“Recognition of the Tribes’ rights benefits not only the Tribes, but all Central Oregonians,” she wrote.

Thornburgh Resort, its lawyers and hired experts have consistently maintained that the resort’s water use won’t detrimentally impact water or wildlife in the Deschutes Basin. In fact, they say the resort will provide net benefits.

“One of the things we can all agree on is that water is a crucial resource,” Kameron DeLashmutt, Thornburgh’s developer said in a Thursday news release.

In the resort’s proposed 2022 fish and wildlife mitigation plan, it vowed to reduce its water use from 2,129 acre feet, or more than 693 million gallons, of water per year to 1,460 acre feet, or more than 475 million gallons, of water per year.

Thornburgh is required to offset its water use under state law, which it says it has accomplished by purchasing existing water rights in the Deschutes Basin and not using them.

“Currently, Thornburgh’s water use is a tiny fraction of the amount of water that it has returned to the aquifer and rivers, resulting in a net positive impact on the Deschutes Water Basin,” Noah Nelson, a spokesperson for the resort, said in the news release.

Decisions at the Land Use Board of Appeals typically occur within 77 days of when the board receives a decision intended for its review. Though, the entire process could take between four and eight months.

Thornburgh Resort:

A brief history

2005: Thornburgh backers facedlegal troubles

2006: Deschutes approves resort plan

2007: Thornburgh runs into hurdle

2009: Thornburgh resort faces foreclosure

2013: Loyal pulls resort plan

2014: Thornburgh resort plan under review again

2017: Opponents, developers of proposed resort butt heads over water

2020: Thornburgh Resort gets approval to build 18-hole golf course from Deschutes County Commission

2022: Potential land sale to controversial Thornburgh Resort draws ire and Thornburgh developers pull plan to purchase state land

2023: Water could soon flow at Thornburgh Resort