Pacificorp v. Deschutes County

Summarized by:

  • Court: Oregon Land Use Board of Appeals
  • Area(s) of Law: Land Use
  • Date Filed: 08-01-2014
  • Case #: 2014-016
  • Judge(s)/Court Below: Opinion by Holstun
  • Full Text Opinion

Definition of a term to include a more expansive meaning for purposes of historic resource designation must be justified by context, technical definitions of the term, dictionary definitions at the time the designation was made, and the nature of historic resources at the time of designation.

The Cline Falls Power Plant is a hydroelectric facility on the Deschutes River, including a dam, wooden flume, penstock, powerhouse, and switchyard. Pacificorp and the Central Oregon Irrigation District (COID) disagreed over whether the penstock includes the flume, important to the obligation to remove facilities under the lease for the now inoperational plant. After a dispute regarding permits and the historical status of the site, the county commissioners declared that the historic resource of the site included only the “dam, penstock, and powerhouse,” but that the flume was part of the penstock. Pacificorp first argued that the Deschutes County Code (DCC) specifies that only the applicant for a declaratory ruling bears the burden of proof, and that COID was not the applicant. LUBA disagreed, holding that DCC limits who may initiate the proceeding, but that others may submit arguments and evidence to meet this burden. Pacificorp next challenged the county commissioners reliance on the Merriam-Webster Dictionary definition of “penstock” and whether the county intended to include the flume in its original 1992 designation of the historic resources as the “dam, penstock, and powerhouse.” LUBA held that the context in which the word “penstock” appeared separately from “flume,” the technical term having been used for years to refer to the closed pipe of the penstock and the open flume separately, the dictionary definition in 1992 being inconsistent, and the difference in view of historic resources at the time of designation all led to the conclusion that the county commissioner’s interpretation was not adequate for review. LUBA declined to interpret the term “penstock” consistent with Pacificorp’s meaning, noting that the term is unusual and thus the county commissioners should have an opportunity to address the Pacificorp’s arguments on remand. REMANDED.