No. 281 May 1, 2024 361

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

THE CONFEDERATED TRIBES OF THE

WARM SPRINGS RESERVATION OF OREGON,

Central Oregon Landwatch, 

Annunziata Gould, and Thomas Bishop,

Petitioners

Cross-Respondents,

v.

DESCHUTES COUNTY,

Respondent,

and

CENTRAL LAND AND CATTLE COMPANY, LLC; 

Pinnacle Utilities, LLC; and Kameron Delashmutt,

Respondents

Cross-Petitioners.

Land Use Board of Appeals No. 2023038

Annunziata GOULD, 

The Confederated Tribes of the Warm Springs Reservation 

of Oregon, Paul J. Lipscomb, Thomas Bishop, 

and Central Oregon Landwatch,

Petitioners

Cross-Respondents,

v.

DESCHUTES COUNTY,

Respondent,

and

CENTRAL LAND AND CATTLE COMPANY, LLC; 

Pinnacle Utilities, LLC; and Kameron Delashmutt,

Respondents

Cross-Petitioners.

Land Use Board of Appeals No. 2023039

CENTRAL OREGON LAND WATCH, 

The Confederated Tribes of the Warm Springs Reservation 

of Oregon, Annunziata Gould, and Thomas Bishop,

Petitioners

Cross-Respondents,
362 Confederated Tribes of Warm Springs v. Deschutes Cty.

v.

DESCHUTES COUNTY,

Respondent,

and

CENTRAL LAND AND CATTLE COMPANY, LLC; 

Pinnacle Utilities, LLC; and Kameron Delashmutt,

Respondents

Cross-Petitioners.

Land Use Board of Appeals No. 2023041; 

A183421(Control), A183430, A183431, A183432, A183436, 

A183461, A183462

Argued and submitted March 28, 2024.

Josh Newton argued the cause for petitioner-crossrespondent The Confederated Tribes of the Warm Springs 

Reservation of Oregon. Also on the briefs were Ellen Grover 

and Best Best & Krieger LLP.

Carol Macbeth argued the cause and filed the brief for 

petitioner-cross-respondent Central Oregon Landwatch.

Jennifer M. Bragar argued the cause for petitioner-cross-respondents Annunziata Gould, Thomas Bishop, 

and Paul J. Lipscomb. Also on the opening briefs were Jay 

M. Harris and Tomasi Bragar Dubay. Also on the joint 

cross-answering brief were Jay M. Harris, Tomasi Bragar 

Dubay, and Carol Macbeth.

Ken Katzaroff argued the cause for respondent-cross-petitioners Central Land and Cattle Company, LLC, Pinnacle 

Utilities, LLC, and Kameron DeLashmutt. Also on the brief 

were Keenan Ordon-Bakalian, Megan Breen, and Schwabe, 

Williamson & Wyatt, P.C.

No appearance for respondent Deschutes County.

Jeffrey B. Litwak filed the brief amicus curiae for 

Columbia River Gorge Commission.

Marcus M. Shirzad, Garrett Brown, and David J. 

Cummings filed the brief amicus curiae for The Confederated 

Tribes and Bands of the Yakama Nation, The Confederated 
Cite as 332 Or App 361 (2024) 363

Tribes of the Umatilla Indian Reservation, and the Nez 

Perce Tribe.

Before Tookey, Presiding Judge, Egan, Judge, and 

DeVore, Senior Judge.

TOOKEY, P. J.

Reversed and remanded to LUBA on petition of The 

Confederated Tribes of the Warm Springs Reservation of 

Oregon, for consideration of Tribe’s first assignment of error 

to LUBA; affirmed on cross-petition; otherwise affirmed.
364 Confederated Tribes of Warm Springs v. Deschutes Cty.

TOOKEY, P. J.

This is a judicial review of an order of the Land Use 

Board of Appeals, dated January 12, 2024, upholding in part 

and remanding in part an order of the Deschutes County 

Board of Commissioners (the board) approving an application 

by Central Land and Cattle Company, LLC, Pinnacle Utilities, 

LLC, and Kameron DeLashmutt (collectively, Thornburgh) 

for an amendment to the Final Master Plan (FMP) for the 

Thornburgh Destination Resort relating to mitigation measures for the development’s impacts on fish, which Thornburgh 

submitted to meet Deschutes County’s “no net loss” standard 

set forth in Deschutes County Code (DCC) 18.113.070(D). 

Thornburgh seeks to change the FMP by replacing the Fish 

and Wildlife Management Plan (FWMP) approved in 2008 

(the 2008 FWMP) with a new plan (the 2022 FWMP), so as 

to reduce the resort’s proposed annual water consumption by 

eliminating one of the resort’s proposed golf courses.

The five petitioners, The Confederated Tribes of the 

Warm Springs Reservation of Oregon (the Tribe), Central 

Oregon LandWatch (LandWatch), Annunziata Gould, 

Thomas Bishop, and Paul J. Lipscomb (collectively, petitioners) contend that LUBA erred in rejecting their challenges 

to the approval and raise different and sometimes overlapping assignments of error. The Tribe also contends, among 

other arguments, that LUBA erred in concluding that its 

challenges to the BOCC’s failure to give sufficient weight to 

the Treaty of 1855 were unpreserved.1

Thornburgh has filed a cross-petition, challenging LUBA’s remand, contending that LUBA substituted its 

judgment for that of the BOCC and weighed the evidence in 

the record as the factfinder in the first instance, rather than 

reviewing for substantial evidence, to find that the 2022 

FWMP’s compliance provisions fail to meet the “no net loss” 

standard.

We review LUBA’s order to determine whether it is 

“unlawful in substance or procedure.” ORS 197.850(9)(a). “A 

1 Amici curiae—the Confederated Tribes and Bands of the Yakama Nation, 

the Confederated Tribes of the Umatilla Indian Reservation, and the Nez Perce 

Tribe, and, separately, the Columbia River Gorge Commission—filed briefs in 

support of the Tribe’s petition.
Cite as 332 Or App 361 (2024) 365

LUBA order is unlawful in substance if it represents a mistaken interpretation of the applicable law.” Kine v. Deschutes 

County, 313 Or App 370, 372, 496 P3d 1136, rev den, 369 Or 

69, 499 P3d 1279 (2021).

On the Tribe’s petition, we conclude that LUBA erred in 

determining that the Tribe did not preserve its arguments 

relating to the applicability of the Treaty of 1855 in determining whether the “no net loss” standard has been met, 

and we therefore remand the order to LUBA for consideration of that argument. We affirm LUBA’s order in all other 

respects on the petitions and cross-petition.

I. BACKGROUND

This case is the latest in a long string of challenges 

to the development of the resort. We described the background facts of the resort in our recent opinion in Gould v. 

Deschutes County, 322 Or App 11, 518 P3d 978 (2022), and 

we set them out here again only as necessary to resolve the 

issues raised on judicial review.

Deschutes County provides for the development 

of destination resorts by a three-step approval process 

described in Deschutes County Code (DCC) 18.113.040. At 

step one, a Conceptual Master Plan (CMP) for the resort is 

processed for approval as though it were a conditional use 

permit. DCC 18.113.040(A). At the second step, application 

is made for a Final Master Plan (FMP). DCC 18.113.040(B). 

The final step is a land division or site-plan review. DCC 

18.113.040(C).2

In 2008, the county approved an FMP for the resort, 

and we upheld that approval on judicial review. Gould v. 

Deschutes County, 59 Or LUBA 435 (2009), aff’d, 233 Or App 

623, 227 P3d 758 (2010) (affirming the FMP). The FMP 

2 Thornburgh has completed the three-step approval process for: (1) a golf 

course site plan; (2) a tentative plan for Phase A-l of development; and (3) a site 

plan for 80 overnight lodging units (OLUs). Those approvals were challenged and 

ultimately affirmed on judicial review. See Gould v. Deschutes County, 314 Or App 

636, 314 P3d 357 (2021), rev den, 369 Or 211 (2022) (affirming the approval of a 

golf course site plan); Gould v. Deschutes County, 322 Or App 11, 518 P3d 978, 

rev den, 370 Or 694 (2022) (affirming the approval of the site-plan review for 80 

OLUs); Gould v. Deschutes County, 322 Or App 571 (2022) (nonprecedential memorandum opinion affirming the approval of the tentative plan for Phase A-l). 
366 Confederated Tribes of Warm Springs v. Deschutes Cty.

provides for phased development. Both the CMP and the 

FMP included Condition 1, which provides:

“Approval is based upon the plan as submitted. Any substantial change to the approved plan will require a new 

application.”

The board has determined that “substantial changes” has 

the meaning as the term is defined in DCC 18.113.080, “an 

alteration in the type, scale, location, phasing or other characteristic of the proposed development such that findings 

of fact on which the original approval was based would be 

materially affected.” 3

The CMP for the resort approved three golf courses 

and required at least one golf course to be constructed in 

the first phase. The approval was supported by an economic 

benefits analysis (Benefit Study) explaining that golf course 

facilities would be an important source of new jobs with a 

total of 125 newly created jobs and 3.9 million dollars in 

employee compensation. Based on the Benefit Study, the 

county found that the resort “will generate a large number 

of full-time positions that will have a positive effect on the 

Deschutes County economy.”

The sole source of water for the resort is groundwater to be pumped from the Deschutes River Basin aquifer.4

There has been significant litigation around the adequacy 

of the resort’s ability to provide the necessary groundwater as well as to satisfy the “no net loss” standard of DCC 

18.113.070(D), which is a county criterion for destination 

resort development that requires that “[a]ny negative impact 

on fish and wildlife resources will be completely mitigated so 

that there is no net loss or net degradation of the resource,” 

but those disputes have thus far been resolved favorably to 

Thornburgh.

3 DCC 18.113.080 relates to modifications of a CMP and provides:

“Procedure for Modification of a Conceptual Master Plan. Any substantial change, as determined by the Planning Director, proposed to an 322An 

insubstantial change may be approved by the Planning Director. Substantial 

change to an approved CMP, as used in DCC 18.113.080, means an alteration 

in the type, scale, location, phasing or other characteristic of the proposed 

development such that findings of fact on which the original approval was 

based would be materially affected.”

4 No surface water runs through the resort property.
Cite as 332 Or App 361 (2024) 367

The FMP for the resort includes a fish and wildlife 

habitat mitigation plan (FWMP) to satisfy the “no net loss” 

standard. In 2008, Deschutes County approved the 2008 

FWMP for the resort, and we ultimately upheld that determination. See Gould v. Deschutes County, 233 Or App 623, 636-

43, 227 P3d 758 (2010) (describing 2008 FWMP litigation).

The litigation involved in these petitions and the 

cross-petition concerns Thornburgh’s request to modify the 

originally approved FMP and 2008 FWMP so as to reduce

its groundwater consumption through reduced pumping of 

groundwater from the aquifer, for the stated purpose of complying with the “no net loss” standard. Thornburgh proposed 

to reduce the resort’s annual groundwater pumping from 

2,129 to 1,460 acre feet, an approximate 30 percent reduction, and an approximately 35 percent reduction in water 

consumption, from 1,356 to 882 acre feet, in part, by not 

developing one of the approved golf courses.5

 The application proposed that, as a modification of the 2008 FWMP and 

in order to satisfy the “no net loss” standard, Thornburgh 

would acquire water rights to provide fish habitat benefits 

or would cancel other water rights.

After a public hearing, a Deschutes County hearings officer rejected the application, based primarily on 

Thornburgh’s failure to provide a sufficient plan for compliance with the “no net loss” standard. On Thornburgh’s 

and Gould’s appeal, the board held a de novo public hearing. 

The Tribe, which had not previously been given notice of or 

participated in the proceedings, requested to be added as a 

party and participated. The board’s order summarized the 

evidence that had been submitted and found:

“According to the science and technical reports, there is generally no scientific or biological significance in the impacts 

under the 2022 FWMP and, as a whole, the plan provides 

benefits to habitat for fish and aquatic species. Given this 

context, we find that the 2022 FWMP plan meets the No 

Net Loss Standard.”

Over objections by petitioners and the Oregon Department of 

Fish and Wildlife (ODFW), the board approved Thornburgh’s 

5 LUBA’s order explains that “consumptive use” means the amount of ground 

water appropriation that will not return to surface water flows.
368 Confederated Tribes of Warm Springs v. Deschutes Cty.

request for modification, rejecting contentions that the “no 

net loss” standard required ODFW and the Tribe’s concurrence and concluding that Thornburgh’s experts had provided credible, substantial evidence that the 2022 FWMP 

satisfies the “no net loss” standard:

“The 2022 FWMP and its extensive technical evidence 

shows that stream flows will increase and temperatures 

decrease as a result of implementation of the 2022 FWMP. 

As such, we find that methods provided by the groundwater mitigation program, including the methods relied upon 

by the 2022 FWMP, are sufficient to meet the no net loss 

standard.”

The board approved the 2022 FWMP as a modification of 

the 2008 FMP.

LUBA upheld the board’s approval as against all of 

the petitioners’ challenges in most respects but remanded 

the board’s order for reconsideration of those issues that 

LUBA concluded required further analysis, one of which we 

address on the cross-petition. We consider the various petitions in the order that we conclude makes logical sense.

II. LIPSCOMB’S PETITION, CHALLENGING LUBA’S 

DEFERENCE TO THE BOARD’S CONSTRUCTION OF 

“SUBSTANTIAL CHANGE” AS USED IN CONDITION 1

Lipscomb raises two assignments of error on judicial review relating to the BOCC’s construction of the text of 

Condition 1 of the CMP and FMP, which provides that “[a]ny 

substantial change to the approved plan will require a new 

application.” Lipscomb asserts in his first assignment that 

the board’s construction of “substantial change,” as used in 

Condition 1 is not entitled to deference, because Condition 

1 is not an ordinance for which the board’s construction is 

entitled to deference. Siporen v. City of Medford, 349 Or 247, 

259, 243 P3d 776 (2010) (setting forth standard of deference 

to local government’s plausible construction of its own zoning ordinances). However, as we understand LUBA’s order, 

LUBA concluded that the board’s construction was of the 

ordinance itself and not Condition 1. As LUBA concluded, 

the board’s conclusion that the definition of “substantial 

change” in DCC 18.113.080 applies to Condition 1 is a 
Cite as 332 Or App 361 (2024) 369

plausible construction to which deference is owed. LUBA did 

not err.

Lipscomb’s second assignment focuses on Condition 

1’s requirement that “[a]ny substantial change to the 

approved plan will require a new application.” (Emphasis 

added.) Lipscomb argues in his second assignment that the 

requirement for a “new application” means that, upon a substantial change, the application process must begin anew, 

with a new CMP. Thus, Lipscomb contends that LUBA erred 

in affirming the board’s determination that it was sufficient 

for Thornburgh to file an application to modify only the 

aspect of the approval that is proposed to be changed. LUBA 

concluded that that construction of the DCC was a plausible one entitled to deference. We have reviewed the relevant provision of the DCC and agree with LUBA that the 

board’s construction of the DCC is a plausible one to which 

deference is owed. And assuming that the proposed changes 

are “substantial,” within the meaning of DCC 18.113.080,6

LUBA correctly held that the board could plausibly construe 

the DCC to not require that the proposed changes start the 

application process from scratch but, rather, be addressed 

through an application for modification of the FMP. That 

concludes our discussion of Lipscomb’s petition, with the 

exception of Lipscomb’s concurrence with an argument 

made by Gould, which we discuss later.

III. LANDWATCH’S PETITION, CHALLENGING 

LUBA’S DEFERENCE TO THE BOARD’S CONSTRUCTION OF “SUBSTANTIAL CHANGE” AS LIMITED TO 

CONSIDERATION OF PROPOSED MODIFICATION

In approving the 2022 FWMP, the board found that 

the CMP and FMP approvals did not depend on or require 

the planned resort to use all of the water predicted as 

6 DCC 18.113.080 provides:

“Procedure for Modification of a Conceptual Master Plan. Any substantial change, as determined by the Planning Director, proposed to an approved 

CMP shall be reviewed in the same manner as the original CMP. An insubstantial change may be approved by the Planning Director. Substantial 

change to an approved CMP, as used in DCC 18.113.080, means an alteration 

in the type, scale, location, phasing or other characteristic of the proposed 

development such that findings of fact on which the original approval was 

based would be materially affected.”
370 Confederated Tribes of Warm Springs v. Deschutes Cty.

consumptive use in the FMP. Thus, the board found that 

Thornburgh’s commitment in the 2022 FWMP to use less 

water than contemplated in the FMP and to forego developing a golf course that had been approved in the FMP did not 

change the approved resort in a manner that would materially affect the CMP/FMP findings as to the satisfaction of a 

county code requirement that adequate water be available 

for all proposed uses.7

 LUBA agreed.

LandWatch raises three assignments of error. 

LandWatch’s first assignment, like Lipscomb’s, relates to 

“substantial change.” LandWatch asserts that LUBA erred 

in deferring to the board’s conclusion that the determination whether there has been a “substantial change” is limited to consideration whether the proposed modification

gives rise to a “substantial change.” In LandWatch’s view, a 

“substantial change” is any change that materially affects 

the findings of fact on the which the CMP or FMP approvals rely. LandWatch asserts that the evidence shows that 

Thornburgh has no water available to supply the resort, 

primarily through the expiration of Water Right Permit 

G-17036, and that that is a substantial change that should 

have been addressed by the board. LandWatch contends 

that LUBA’s order is unlawful in substance in not deciding 

whether Thornburgh’s loss of the available water to supply 

to the resort constitutes a Condition 1 substantial change, 

and, like Lipscomb, asserts that LUBA erred in failing 

to reverse the board’s order and require that Thornburgh 

begin the application process anew.

LUBA reasoned that the question of the availability of water to the resort was not a required aspect of the 

board’s consideration in determining whether the changes 

proposed by Thornburgh to the FMP and the FWMP met 

7 DCC 18.113.070(K) is a resort approval criterion that requires the county 

to find:

“Adequate water will be available for all proposed uses at the destination 

resort, based upon the water study and a proposed water conservation plan. 

Water use will not reduce the availability of water in the water impact areas 

identified in the water study considering existing uses and potential development previously approved in the affected area. Water sources shall not 

include any perched water table. Water shall only be taken from the regional 

19 aquifer. Where a perched water table is pierced to access the regional 

aquifer, the well must be sealed off from the perched water table.”
Cite as 332 Or App 361 (2024) 371

the “no net loss” standard. Under the board’s interpretation 

of the “substantial change” inquiry, to which LUBA properly 

deferred, that conclusion was correct.8

 The board identified 

its task as determining whether the changes proposed by 

Thornburgh were substantial, not whether circumstances 

outside of the application had substantially changed. And as 

Thornburgh correctly responds, the record does not establish that Thornburgh has no water rights available to it. 

See Gould v. Deschutes County, 322 Or App at 18 (affirming 

LUBA’s determination that Thornburgh had met the documentation requirement of FMP Condition 10 pertaining to 

water rights and mitigation).

LandWatch further argues that LUBA erred in failing to decide that issue, in violation of ORS 197.835(11)(a):

“Whenever the findings, order and record are sufficient 

to allow review, and to the extent possible consistent with 

the time requirements of ORS 197.830(14), the board shall 

decide all issues presented to it when reversing or remanding a land use decision described in subsections (2) to (9) of 

this section or limited land use decision described in ORS 

197.828 and 197.195.”

In fact, LUBA did consider LandWatch’s argument and 

explicitly rejected it, based on its deference to the county’s 

decision to interpret “substantial change” to have the meaning that it does in DCC 18.113.080.

LandWatch, like Lipscomb, contends that LUBA 

erred in deferring to the county’s interpretation of Condition 

1 as to the meaning of “substantial change,” because no deference is owed to the interpretation of a condition, as opposed 

to a code provision. LandWatch further argues that, textually, “substantial change” should not mean the same thing 

in Condition 1 as it does in DCC 18.113.080:

8 LUBA said: “The county has interpreted ‘substantial change’ in Condition 

1 to have the same meaning as the term is used in DCC 18.113.080, which is 

‘an alteration in the type, scale, location, phasing or other characteristic of the 

proposed development such that findings of fact on which the original approval 

was based would be materially affected.’ Thus, Thornburgh must submit a new 

application for any proposed modification that will alter a characteristic of the 

approved resort development such that any finding of fact supporting the CMP or 

FMP approval would be materially affected.”
372 Confederated Tribes of Warm Springs v. Deschutes Cty.

“The definition of ‘substantial change’ in DCC 18.113.080 

is limited to that section. It is not a global definition of the 

term ‘substantial change.’ DCC 18.113.080 does not define 

a ‘substantial change’ as a ‘modification.’ Rather, DCC 

18.113.080 defines a ‘substantial change’ as an ‘alteration.’ 

In DCC 18.113.080, some CMP modifications are substantial changes, and some substantial changes are CMP modifications, but it does not follow that all substantial changes 

must be CMP modifications.”

In LandWatch’s view, DCC 18.113.080 does not mandate 

that all “substantial changes” be defined as in that section of the DCC. LandWatch therefore contends that LUBA 

should have interpreted “substantial change” as a matter 

of law. The county’s construction is plausible. LUBA therefore did not err in deferring to the county’s conclusion that 

the meaning of “substantial change” as defined in DCC 

18.113.080 should apply to Condition 1.

In its second assignment, LandWatch makes the 

same argument as Lipscomb relating to the board’s conclusion that Thornburgh was not required to begin the application process anew but could seek approval for the proposed changes through a modification application. We reject 

LandWatch’s assignment for the same reason we reject 

Lipscomb’s.

In its third assignment of error, LandWatch contends that LUBA erred in affirming the board’s determination that CMP Condition 28 has been superseded by 

Condition 37. Condition 28 provided:

“Applicant shall abide at all times with the [Memorandum 

of Understanding] with BLM, dated September 28, 2005, 

regarding mitigation of impacts on surrounding federal 

lands, to include wildlife mitigation and long range trail 

planning and construction of a public trail system. The mitigation plan adopted by Applicant in consultation with Tetra 

Tech, ODFW and the BLM shall be adopted and implemented throughout the life of the resort.”

(Emphasis added.) After litigation determining that 

Condition 28 was legally insufficient because it failed to provide an opportunity for public participation in the board’s 

decision on whether Thornburgh’s mitigation plan satisfied 
Cite as 332 Or App 361 (2024) 373

the “no net loss” standard, Gould v. Deschutes County (Gould 

II), 216 Or App 150, 159, 171 P3d 1017 (2007), the BOCC 

adopted Condition 37:

“Applicant shall demonstrate compliance with DCC 

18.113.070(D) by submitting a wildlife mitigation plan to 

the County as part of its application for Final master plan 

approval. The County shall consider the wildlife mitigation 

plan at a public hearing with the same participatory rights 

as those allowed in the CMP approval hearing.”

LandWatch asserts that under Condition 28, the ODFW 

must approve Thornburgh’s mitigation plan. LandWatch 

further asserts that, contrary to LUBA’s holding, Condition 

37 does not supersede Condition 28. Thus, LandWatch 

asserts, LUBA erred in affirming the board’s approval of 

the 2022 FWMP, which was not approved by the ODFW.

LandWatch’s contention is answered by the fact 

that, as a textual matter, Condition 28 does not require 

ODFW’s approval of a mitigation plan; it requires that the 

plan be developed in consultation with ODFW. There is no 

dispute that the 2022 FWMP was developed in consultation with the ODFW. LUBA did not err in concluding that 

the board’s approval of the 2022 FWMP did not require the 

approval of ODFW.

IV. GOUD’S PETITION, CHALLENGING LUBA’S 

REJECTION OF CONTENTION THAT UNDERLYING 

CMP IS VOID

In her first assignment of error, in which Lipscomb 

joins, Gould contends that the board lacked authority to consider Thornburgh’s request for a modification of the FMP, 

because the underlying CMP had become void and no new 

CMP has been initiated. In rejecting that argument, LUBA 

deferred to the board’s conclusion that the CMP had been 

incorporated into and superseded by the FMP. We agree 

with LUBA that the board’s conclusion represents a plausible construction of the DCC and that deference was therefore appropriate.

Additionally, as LUBA held, Gould’s contention has 

been rejected by LUBA in Central Land and Cattle, LLC v. 

Deschutes County, 74 Or LUBA 326, aff’d without opinion, 
374 Confederated Tribes of Warm Springs v. Deschutes Cty.

283 Or App 286, 388 P3d 739 (2016), rev den, 361 Or 311 

(2017). Gould challenges LUBA’s determination that Gould 

is attempting to litigate an issue that has previously been 

determined in Central Land and Cattle, LLC, contending 

that LUBA incorrectly relied on the law of the case, which 

it argues applies only to appellate decisions. We need not 

resolve whether LUBA properly referred to law of the case, 

because, as we said in Gould v. Deschutes County, 322 Or App 

at 23, a party is not entitled to relitigate issues that have 

been resolved on review of previous phases of the same land 

use litigation. Beck v. Tillamook, 313 Or 148, 153, 831 P2d 

678 (1992). LUBA’s prior holding is conclusive of the issue.9

In her second assignment of error, Gould argues, 

similarly to LandWatch, that water availability conditions 

have changed significantly since the original CMP was 

approved and that a new CMP therefore must be initiated 

pursuant to DCC 18.113.070(K). For the same reason that 

we reject LandWatch’s first assignment of error, we reject 

this assignment.

9 LUBA held:

“For purposes of this appeal we will assume without deciding that the 

CMP approval has become ‘void’ under DCC 22.36.010(B)(1). However, even 

if we assume the County’s CMP approval became void on November 18, 2011, 

we conclude below in addressing the third cross-assignment of error that the 

FMP remand proceedings were initiated by Thornburgh Resort on August 

15, 2011, which was before the CMP became void. The county’s first FMP 

approval decision found, with only two exceptions, that the FMP fully complies with the CMP. Those two exceptions have to do with the no net loss/degradation standard that normally applies at the time of CMP approval. The 

county’s decision to defer its finding on the DCC 18.113.070(D) no net loss/

degradation standard until FMP approval was affirmed in Gould v. Deschutes 

County, 57 Or LUBA 403 (2008), aff’d, 227 Or App 601, 206 P3d 1106 (2009). 

As Gould correctly notes, the CMP potentially remains a relevant source of 

FMP approval considerations because at least some of the CMP conditions 

of approval effectively cannot be performed until after FMP approval. But 

those conditions of approval were carried forward in the county’s first FMP 

approval decision and remain part of the current FMP approval decision. 

All requirements of the CMP approval are now requirements of the county’s 

FMP approval. The FMP approval has effectively incorporated and displaced 

the CMP approval. In these unusual circumstances, where the only remaining questions on appeal concern two issues that were expressly deferred to 

the FMP decision, we conclude it was not error for the county to proceed to 

determine on remand whether the errors identified by LUBA in the FMP 

could be corrected and the FMP approved for a second time, even though the 

CMP approval has become void.” 

74 Or LUBA at 346 (footnote omitted). 
Cite as 332 Or App 361 (2024) 375

V. BISHOP’S PETITION, CHALLENGING SUFFICIENCY OF EVIDENCE OF THE BOARD’S BASELINE 

DETERMINATION AND LUBA’S DEFERENCE TO THE 

BOARD’S CONSTRUCTION OF DCC 18.113.070(D)

DCC 18.113.070(D) requires that a destination 

resort mitigate all negative impacts such that there is no 

net loss or degradation of fish and wildlife resources, and 

provides:

“In order to approve a destination resort, the Planning 

Director or Hearings Body shall find from substantial evidence in the record that:

“*****

“D. Any negative impact on fish and wildlife 

resources will be completely mitigated so that there is no 

net loss or net degradation of the resource.”

On judicial review of the 2008 FMP approval, we interpreted the meaning of “fish and wildlife resources” in DCC 

18.113.070(D) to “refer[] not to species of fish and wildlife, 

but to the habitat that supports fish and wildlife.” Gould v. 

Deschutes County, 233 Or App 623, 631-633, 227 P3d 758 

(2010). In that opinion, we accepted the parties’ understanding that DCC 18.113.070(D) requires, first, an assessment of 

fish and wildlife resources before development and, second, 

mitigation to make up for negative impacts caused by development. Id. at 631. We determined that “fish and wildlife 

resources” could be measured by the habitat that supports 

fish and wildlife, and a plan could satisfy the standard if 

it “will completely mitigate any impact on the habitat that 

supports fish and wildlife, without showing that each individual species will be maintained or replaced on a one-toone basis.” Id. at 631-634. Thus, the first part of the “no net 

loss” analysis requires an “assessment of fish and wildlife 

resources before development.” Id. at 631. The parties and 

LUBA refer to the status of fish and wildlife resources before 

development as the “baseline.” Once a baseline condition is 

established, and once the negative impacts are quantified, 

the applicant is tasked with presenting a plan that will 

ensure that the impacts are completely mitigated for the life 

of the resort. The negative impacts are measured from the 
376 Confederated Tribes of Warm Springs v. Deschutes Cty.

baseline conditions, for example the baseline temperatures 

and flow rates.

Thornburgh presented, and the board relied on, evidence of streamflow data from the 2016 hydrological year, 

as a typical hydrological year, for determining baseline 

flows for purposes of measuring fish habitat impacts. The 

board further determined the “no net loss” standard only 

requires a resort to mitigate its own impacts, not the cumulative impacts of drought or other basin-wide water policy 

and management issues.10 Bishop argued to LUBA that 

habitat modeling should account for impacts to the stream 

system habitat that are “identifiable, predictable, measurable, and reasonably likely to occur,” such as drought and 

changed stream flows in response to implementation of the 

Deschutes Basin Habitat Conservation Plan (DB HCP), a 

basin-wide plan that requires eight irrigation districts and 

the City of Prineville to manage irrigation activities in the 

Deschutes River Basin to provide habitat protections for 

endangered fish and wildlife. LUBA reasoned that Bishop’s 

construction is one plausible reading of DCC 18.113.070(D). 

10 The board found:

“Many of the arguments and issues related to Thornburgh’s 2022 FWMP 

are related to drought and regional well decline. Opponents assert that these 

are relevant issues and should lead to denial. We disagree. The No Net Loss 

Standard requires a resort to mitigate its own impacts, not the cumulative 

impacts of drought or other basin wide water policy and management issues. 

The No Net Loss/degradation test is limited to addressing potential negative 

impacts of resort development. Impacts to habitat caused by other persons or 

environmental conditions are not attributable to [the resort’s] use of water or 

the impacts of [resort’s] use.

“Thornburgh has quantified its impacts on water quality and quantity 

and the locations where these impacts will occur. It has studied waterway 

conditions in a typical year, and it has also provided expert evidence that 

shows the benefits of mitigation are enhanced during periods of drought. 

This approach properly accounts for issues of drought and the low flow conditions opponents argue make the results of Thornburgh’s expert analysis of 

aquatic habitat unreliable.

“Opponents, ODFW, and the Tribe have also raised issues that pending litigation regarding flow requirements and the [DB HCP] related to 

the Spotted Frog may lead to additional constraints on live flows. These 

issues are outside of the scope of the [resort’s] impacts and [the resort] is not 

required to mitigate for them.

“Thornburgh must mitigate for its impacts, alone. Further, Thornburgh’s 

plan relies primarily upon groundwater water sources, and its technical 

analysis shows that the 2022 FWMP will result in increased surface flows 

which are beneficial to fish and wildlife.”
Cite as 332 Or App 361 (2024) 377

But LUBA concluded that the board’s construction is also 

plausible, reasoning that the board’s construction that “any 

negative impact” may be analyzed based on a baseline flow 

that represents a typical water year, measured only by the 

resort’s impact on the system,

“is not expressly inconsistent with the language of DCC 

18.113.070(D) or the underlying policy—which is to hold 

a proposed resort accountable to completely mitigate the 

resort’s impacts so that there is no net loss of fish resources.”

LUBA thus deferred to and upheld the board’s interpretation.

Bishop’s assignments of error focus on the “no net 

loss” standard and relate primarily to the sufficiency of 

Thornburgh’s evidence with respect to the “baseline” from 

which to determine a mitigation plan’s impact on existing 

habitat and whether the 2022 FWMP satisfies the “no net 

loss” standard. In his first assignment, although Bishop characterizes LUBA’s error as “shift[ing] the burden to Petitioners 

to properly define the baseline for study of whether the resort 

can meet the no net loss or degradation of fish and wildlife 

resources standard,” underlying the assignment is Bishop’s 

view that the evidence on which the board relied to establish 

a baseline was simply legally insufficient, because it failed to 

take into account basin-wide circumstances such as drought, 

groundwater decline, well deepening, and changed flows 

resulting from implementation of the DB HCP, affecting fish 

habitat beyond the resort’s uses and impacts.

We are not persuaded that LUBA erred in determining that the board’s narrow construction of DCC 

18.113.070(D) is plausible and entitled to deference. As 

LUBA concluded, it is not contradicted by the text of the 

code provision. Nor are we persuaded that the county’s construction is inconsistent with our holding in Gould, 233 

Or App at 633, that “DCC 18.113.070(D) allows a focus on 

fish and wildlife habitat [as opposed to each individual species of fish] to establish that ‘[a]ny negative impact on fish 

and wildlife resources will be completely mitigated so that 

there is no net loss or net degradation of the resource.’”

LUBA further determined that the board’s determination of a baseline flow using the 2016 hydrological year 
378 Confederated Tribes of Warm Springs v. Deschutes Cty.

was supported by substantial evidence. Bishop contends 

that LUBA erred, because the analysis of the board ignores 

pertinent changes in flows that have occurred since 2016 

and that impact habitats, including drought, groundwater 

decline, well deepening, and changed flows resulting from 

implementation of the DB HCP. In reviewing LUBA’s substantial evidence determination, our role is not to reweigh 

the record but to determine whether LUBA properly stated 

and applied the substantial evidence standard of review. 

Citizens for Responsibility v. Lane County, 218 Or App 339, 

345, 180 P3d 35 (2008). LUBA did not err.

Also under his first assignment of error, Bishop 

contends that LUBA erred by shifting the burden of proof 

in assigning to petitioners responsibility to present the 

all the factors that must be considered in determining the 

proper baseline, rather than requiring the board to require 

Thornburgh to provide a complete assessment. We do not 

view LUBA’s analysis to have shifted the burden; rather, 

LUBA determined that substantial evidence supported the 

board’s findings.

The 2022 FWMP includes a provision relating to 

“compliance”—conditions that Thornburgh must adhere 

to in order to ensure that the 2022 FWMP meets the “no 

net loss” standard.11 The board determined that “the 2022 

FWMP ensures ongoing compliance with the No Net Loss 

11 Section D of the 2022 FWMP compliance provision describes the methods 

by which Thornburgh can establish compliance:

“Compliance: The purpose of this section is to clarify what constitutes compliance with this updated 2022 FWMP, whether during the review of Resort 

land use applications, as reported as part of annual monitoring, or for any 

other purpose. As noted above Thornburgh owns 1,211 AF of water rights to 

be used for pumping or mitigation and pumping at the point of diversion or 

appropriation of the certificate has been discontinued. For the reasons discussed herein compliance with this FWMP has been met for rights b-f, and 

will be met for the TSID water (g) in the manner discussed in this Section, 

1b below. For any additional water rights that are acquired compliance will 

be met as described herein.

“1. Compliance with this FWMP will occur differently for water appropriated from a surface water Point of Diversion (POD) versus a groundwater 

Point of Appropriation (POA) or for a mitigation credit as follows:

“a. POA - Groundwater: For any future rights that may be acquired, compliance occurs upon the cessation of pumping of the rights and along with 

any of the following: deed evidencing the transfer of ownership, a submittal 

to OWRD of any of the following: (i) an assignment of the water right to 
Cite as 332 Or App 361 (2024) 379

Standard and sufficient monitoring is required by the 2022 

FWMP and FMP Condition 40.”12

LUBA disagreed with the board with respect to the 

compliance provision’s sufficiency and remanded the 2022 

FWMP compliance provision to the board, concluding that 

the compliance provision’s reliance on OWRD applications

for groundwater permits was not sufficient. LUBA agreed 

with Bishop’s contention that the county must require proof 

of completion of each alternative OWRD process, rather than 

mere ownership of a certificate and submittal of an application to OWRD, before the county may conclude that the “no 

net loss” standard has been satisfied. LUBA agreed with 

Bishop’s contention that, under the 2022 FWMP, the county 

has no way to determine if fish habitat mitigation water will 

be available before approving actual buildings on site under 

a third-stage approval. LUBA also concluded that the 2022 

FWMP reporting requirements are not sufficient to make 

up the shortcoming of the compliance provisions to demonstrate “no net loss.” Thus, LUBA issued a narrow remand, 

relating to the sufficiency of the compliance conditions of the 

2022 FWMP with respect to groundwater permits.13

In his second assignment of error, Bishop contends 

that the entire compliance section—not just that related to 

Thornburgh, (ii) an application that seeks OWRD approval of a transfer to 

pump at the Resort property, or (iii) a cancellation in-lieu of mitigation.

“b. POD - Surface Water: Once acquired, Compliance occurs upon the cessation of pumping at the source and submittal to OWRD, and OWRD issues a 

final order (or its equivalent) approving any of the following: (i) an application 

that transfers to pump at the Resort property, (ii) an application that transfers the water to an in-stream lease, (iii) the cancellation in-lieu of mitigation, or (iv) an application to transfer to obtain mitigation credits, permanent 

or temporary. 

“c. Mitigation Credit: ln the event that Thornburgh acquires mitigation credits, compliance occurs when Thornburgh provides proof of ownership or proof 

of submittal to OWRD to use the credits as mitigation.

“Thornburgh also agrees to the following measures to provide mitigation benefits over and above the benefits achieved by the mandatory measures described 

above.”

12 Condition 40 provides: “Thornburgh shall comply with the 2022 [FWMP], 

including its compliance and reporting mechanisms found in Section II of that 

plan.”

13 We note that Thornburgh’s cross-petition, which we address later in this 

opinion, challenges LUBA’s determination as to the sufficiency of the compliance 

provisions.
380 Confederated Tribes of Warm Springs v. Deschutes Cty.

groundwater—was legally insufficient, because it allows 

Thornburgh to use all current listed water rights for consumption, leaving compliance with the “no net loss” standard 

to unidentified and not-yet purchased (or proven available) 

water rights. Bishop asserts that the board’s finding that 

such prospective purchase of water rights would result in no 

net loss or degradation of fish and aquatic wildlife habitat has 

no support in the record, or basis in law or fact. Thus, Bishop 

contends, the 2022 FWMP “undeniably creates a loophole for 

compliance that does not assure no net loss/degradation of 

fish and aquatic wildlife habitat.” Bishop also argues that an 

“instream water right” (ISWR) lease is insufficient as a form 

of compliance for surface water rights used for mitigation.

Thornburgh responds that Bishop’s arguments 

under his second assignment as relating to ISWR leases and 

surface water compliance provisions are not preserved—

that Bishop did not make those arguments to LUBA and 

that LUBA’s remand relates only to the inadequacy of compliance measures as to groundwater, and we agree. It is 

apparent from LUBA’s order that Bishop did not present the 

lease argument to LUBA and that the remand is limited 

to compliance provisions relating to groundwater only.14 We 

reject Bishop’s second assignment of error as unpreserved.

14 LUBA explained:

“Thornburgh does not argue that the reporting requirements in the 2022 

FWMP are sufficient to demonstrate no net loss, and we do not see that they 

are. The required report might show that the quantities and quality of water 

assumed in the 2022 FWMP have been provided, or it might not. No additional reporting is required during the review of any land use application 

related to the resort. As we understand it, the 2022 FWMP modeling assumes 

equal efficacy and reliability as between instream water right transfers and 

voluntary cancellation of water rights so that those legal processes have the 

same instream impacts on water quality and quantity. We agree with Bishop 

that the county’s findings are inadequate to explain why submittal to OWRD 

is sufficient to satisfy the no net loss standard with respect to groundwater 

sources for fish habitat mitigation. Indeed, Thornburgh and the county rely 

upon OWRD processes to ensure that voluntary cancellation of water rights 

consistent with OWRD rules and review processes will result in improved 

fish habitat. * ** The county has failed to explain how simple submittal of an 

application to OWRD permits the county to rely on those OWRD processes.

“Thornburgh points to no evidence to support the county’s conclusion that 

the ‘2022 FWMP ensures ongoing compliance with the No Net Loss Standard 

and sufficient monitoring is required by the 2022 FWMP and FMP Condition 

40.’ * ** Thornburgh has not pointed to any evidence supporting a conclusion that ground water right certificate ownership, cessation of pumping, and 
Cite as 332 Or App 361 (2024) 381

VI. THE TRIBE’S PETITION, CHALLENGING 

LUBA’S CONCLUSION THAT ERROR RELATING 

TO IMPLICATIONS OF TREATY RIGHTS IS 

UNPRESERVED

Under the provisions of the treaty with the Tribes of 

Middle Oregon, dated June 25, 1855 (1855 Treaty), the Tribe’s 

predecessors ceded their traditional lands to the United 

States. In exchange, they reserved the lands that became the 

Warm Springs Reservation for their exclusive occupation and 

use, and a non-occupancy interest in ceded lands. Specifically 

with regard to fishery resources, the 1855 Treaty reserved to 

the Tribe the exclusive right to take fish “in the streams running through and bordering [the Warm Springs Reservation]” 

and at “all other usual and accustomed stations.” 1855 Treaty; 

Anthony v. Veatch, 189 Or 462, 483, 220 P2d 493 (1950). 

The substantial majority of the Deschutes Basin, including 

Thornburgh Resort, lies within the lands used and occupied 

by the Tribe since time immemorial, and the Tribe is a sovereign co-manager of the fish resources of the Deschutes Basin.

The 1855 Treaty was enacted as federal law at 12 

Stat 963 and is the “supreme law of the land.” US Const, Art 

VI, § 2; Skokomish Indian Tribe v. United States, 410 F3d 

506, 512 (9th Cir 2005), cert den, 546 US 1090 (2006) (citing

Breard v. Greene, 523 US 371, 376, 118 S Ct 1352, 140 L Ed 

2d 529 (1998). Thus, the State of Oregon, as well as its local 

governments, must observe the 1855 Treaty.15 The interpretation of the 1855 Treaty is a matter of federal law. State v. 

Begay, 312 Or App 647, 652, 495 P3d 732 (2021); see Felix 

Cohen, Cohen’s Handbook of Federal Indian Law § 2.01(1), 

109 (Nell Jessup Newton ed 2012) (explaining that federal 

law governs the United States’ recognition of tribal status 

and rights).

OWRD submittal is sufficient to ensure fish mitigation water will be provided as assumed in the 2022 FWMP.”

15 We reject Thornburgh’s contention that the Ninth Circuit in Skokomish 

Indian Tribe held that local governments are not bound by tribal treaties. That 

court held only that a tribe is not a “private person” under section 1983 and therefore cannot maintain a private action for damages under section 1983 against a 

governmental entity that is not a party to the treaty for violation of fishing rights 

reserved by the treaty. 410 F3d at 514. The court did not address whether local 

governments are otherwise bound to comply with treaty provisions and the issue 

was not before the court.
382 Confederated Tribes of Warm Springs v. Deschutes Cty.

The United States Court of Appeals for the Ninth 

Circuit has held that the 1855 Treaty secures to the Tribe 

and its members a right to a harvestable population of fish in 

the Deschutes Basin and to protect the habitat necessary to 

sustain those fish. See generally United States v. Washington, 

853 F3d 946 (9th Cir 2017), aff’d by an equally divided court, 

584 US 837 (2018). The court has held that the amount of 

instream water necessary to sustain that habitat is “at least 

equal to” what is needed to satisfy any applicable Endangered 

Species Act (ESA) obligations for listed-fish species, including 

the Middle Columbia River steelhead and bull trout. Baley v. 

United States, 942 F3d 1312, 1337 (9th Cir 2019).

The Tribe argued in its first assignment of error 

before LUBA that the board improperly failed to consider 

whether approval of the 2022 FWMP violates the fishing 

clause of the 1855 Treaty and improperly failed to consider 

the Treaty in determining whether the 2022 FWMP satisfies the “no let loss” standard under DCC 18.113.070(D) that 

the board was required to apply in considering Thornburgh’s 

application. LUBA determined that the Tribe had failed to 

adequately raise that issue before the board and therefore 

had failed to preserve it for LUBA’s consideration; thus, 

LUBA did not address the merits of the issue.

In its petition for judicial review, the Tribe contends that LUBA erred in determining that the Tribe failed 

adequately to preserve before the board and to present 

to LUBA whether the 1855 Treaty must be considered in 

determining whether the 2022 FWMP satisfied the “no net 

loss” standard. The Tribe points out that the right to fish 

on its reserved lands, as well as in all “usual and accustomed places,” including those places now located on ceded 

lands, see United States v. Winans, 198 US 371, 381, 25 S Ct 

662, 49 L Ed 1089 (1905) (“The right to resort to the fishing 

places in controversy was a part of larger rights possessed 

by the Indians, upon the exercise of which there was not a 

shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere 

they breathed.”), includes the right to have fish to harvest in 

the usual and accustomed places of harvest. United States 

v. Washington, 853 F3d 946, 964 (9th Cir 2017), aff’d by 

an equally divided court, 584 US 837 (2018) (“The Indians 
Cite as 332 Or App 361 (2024) 383

reasonably understood Governor Stevens to promise not only 

that they would have access to their usual and accustomed 

fishing places, but also that there would be fish sufficient to 

sustain them.”). The Tribe asserts that its treaty-protected 

right to fish is a resource as to which there must be “no net 

loss” under DCC 18.113.070(D).16

The issue before us on judicial review is not the 

correctness of the Tribe’s assertion relating to the extent to 

which the fishery resource guaranteed in the1855 Treaty 

must be considered by the board in evaluating Thornburgh’s 

application, but whether the Tribe preserved the issue 

before the board for review by LUBA. As counsel for the 

Tribe stated at oral argument,

“If we weren’t stuck on the preservation issue, we might 

be before the Court deciding whether or not the Treaty 

imposes this positive obligation on the County or not. But 

that’s not the issue before the Court today. The issue before 

the Court today is has the Tribe made the requisite showing to even have its day in court.”

For the reasons below, we agree with the Tribe that it has 

made the requisite showing.

As the parties agree, “[a]n issue which may be the 

basis for an appeal to the Land Use Board of Appeals shall 

16 The Tribe asserted before LUBA that its treaty-protected fishery right is a 

resource that is at risk of potential loss or degradation as a result of Thornburgh’s 

project, which relies primarily on groundwater withdrawals. Those withdrawals, 

the Tribe asserts, will drain aquifers underlying the project that have connectivity to surface water flows vital to the continued survival of at-risk fish species in 

the Deschutes Basin. The Tribe doubts that Thornburgh’s proposal to mitigate 

those negative impacts by buying and/or canceling existing water rights elsewhere in the basin will sufficiently ensure that there will be enough water for fish 

to survive in nearby streams, and to ensure that the water flow and temperature 

will be sufficient to allow harvestable numbers of at-risk species of fish to survive 

at the Tribe’s usual and accustomed fishing places during the proper time of year. 

The Tribe asserts that the latter is necessary to sustain the fishery resource in 

fulfillment of the Tribe’s treaty-protected right to that resource. The Tribe argued 

before LUBA that despite multiple comments (including exhibits) and testimony 

by the Tribe’s representative, Austin Smith Jr., providing indigenous knowledge 

about the fish and wildlife resources of the Deschutes Basin, the board decision 

concluded that the Tribe provided no “expert testimony” whatsoever, including 

with respect to its treaty-protected fisheries and their associated habitats. The 

Tribe asserted before LUBA that the board erred when it failed to consider the 

Tribe’s treaty-protected right to the fishery resource in determining that there 

would be no net loss or degradation as a result of Thornburgh’s proposed project.
384 Confederated Tribes of Warm Springs v. Deschutes Cty.

be raised not later than the close of the record ** * before the 

local government[.]” ORS 197.797(1). The Tribe preserved its 

arguments relating to the impact of the 1855 Treaty on the 

“no net loss” determination before the board. The record, 

including the Tribe’s three comment letters addressed to 

the board and the Tribe’s representative’s testimony at the 

February 1, 2023, public hearing, reflects that the Tribe 

brought to the board’s attention the importance of considering the Tribe’s fishery resource as an aspect of the “no net 

loss” standard. In a letter of January 31, 2023, the Tribe’s 

representative, Austin Smith Jr., General Manager of the 

Tribe’s Branch of Natural Resources, raised concerns about 

the potential impact of the proposed 2022 FWMP on ESAlisted fish species and about Thornburgh’s lack of consultation with the Tribe, despite the Tribe’s status as a sovereign co-manager of the fisheries resources throughout the 

Deschutes Basin. Smith also observed that technical expertise was required to properly evaluate the complex issues 

implicated by the proposed 2022 FWMP and that, while the 

Tribe possessed technical expertise, it needed time assess 

the issues and to consult its co-managers, ODFW and the 

OWRD. In his letters to the board, Smith specifically raised 

the issue of the Tribe’s treaty-protected rights as implicating resources under the “no net loss” standard.17 We note, 

further, Smith’s March 1, 2023, letter to the board:

“[T]he Tribe does not currently have enough information 

to evaluate whether [Thornburgh] can *** demonstrate 

that its water use and mitigation plan completely mitigates 

negative impacts on the fishery resource so that there is 

no net loss or net degradation of the resource. * ** Because 

the fishery resources at issue are both treaty-protected 

and vital to the Tribe’s cultural identity and existence, the 

Tribe urges the Commission to resolve these questions in 

favor of a more deliberate process.”

17 On January 3, 2022, Smith requested an extension of the record to allow 

additional time for the Tribe, which had not previously received notification of 

the application, to develop a response and provide additional information. With 

Thornburgh’s agreement, the BOCC allowed an extension of the record for 30 

days. The Tribe submitted materials to the BOCC, including a letter from Smith 

on January 31, 2022, explaining the connection between the Tribe’s treaty-protected fishery resource and the “no net loss” standard. The hearing before the 

BOCC occurred on the following day, February 1, 2023.
Cite as 332 Or App 361 (2024) 385

The standard for preservation of an issue for review before 

LUBA “requires no more than fair notice to adjudicators and 

opponents, rather than the particularity that inheres in judicial preservation concepts.” Boldt v. Clackamas County, 107 

Or App 619, 623, 813 P2d 1078 (1991). Contrary to LUBA’s 

conclusion, the letters of January 31, 2023, and March 1, 

2023, were legally sufficient to assert before the board that 

the county must apply the “no net loss” standard so as to 

encompass recognition of the 1855 Treaty and the Tribe’s 

fishery resource, as historically recognized by the Tribe, to 

“include the right to have fish to harvest in the usual and 

accustomed places of harvest.” Washington, 853 F3d at 964. 

We conclude that the board had fair notice of the Tribe’s 

assertion that an evaluation of the “no net loss” standard 

implicated consideration of the Tribe’s treaty-protected fishery resource and, therefore, that the Tribe sufficiently preserved the issue before the board.

We further conclude that the Tribe sufficiently 

raised the issue before LUBA. In its opening brief before 

LUBA, the Tribe summarized its argument concerning 

the Treaty: “[T]he County improperly construed the 1855 

Treaty by failing to consider whether its approval of the 

2022 FWMP violates the fishing clause in the 1855 Treaty, 

which includes a right to fish habitat protection.” LUBA 

viewed that argument as different from and insufficient to 

raise the more precise argument that the Tribe stated in its 

reply brief and at oral argument before LUBA, and which 

it now raises on judicial review, that “proper application of 

DCC 18.113.070(D) required the County to consider whether 

the 2022 FWMP violates the fishing clause of the 1855 

Treaty.” The Tribe’s argument in its opening brief before 

LUBA was not so narrow. Implicit in the Tribe’s argument 

that the board had approved the 2022 FWMP in violation of 

the fishing clause of the 1855 Treaty was the contention that 

the “no net loss” requirement of DCC 18.113.070(D) must be 

construed to include consideration of the Tribe’s treaty fishing rights. The Tribe made the latter point explicitly in its 

argument under the second assignment:

“The [board] cannot conclude, as a matter of law, that ‘system wide benefits’ (whatever that phrase may mean) satisfy the no net loss standard in DCC 18.113.070(D) without 
386 Confederated Tribes of Warm Springs v. Deschutes Cty.

expressly finding that the 2022 FWMP does not violate 

either the 1855 Treaty or [other state law].”

Thus, we conclude that the Tribe adequately articulated 

in its opening brief before LUBA that the treaty-protected 

fishery resource is a resource to which there can be “no net 

loss” or degradation under DCC 18.113.070(D), and that any 

net loss to the Tribal fishery resource is a violation of DCC 

18.113.070(D) and the 1855 Treaty. Further, in its reply brief 

before LUBA, the Tribe clarified that position when it argued:

“The [board] and parties had fair notice that Tribe asserted 

that the fish resources affected by the 2022 FWMP are 

protected by the 1855 Treaty. The Tribe also demonstrated 

that it understood that DCC 18.113.070(D) contains the 

applicable approval criterion, which requires no net loss or 

degradation of fish resources, including those protected by 

the 1855 Treaty. The Tribe asserted treaty rights in the fish 

resources of the Deschutes Basin, including an enforceable 

right to take fish through the basin and the right to fish 

habitat protection so that it would have fish to take.”

We conclude that the Tribe adequately preserved before the 

board and presented to LUBA its arguments concerning the 

relationship between the Tribe’s treaty rights and the “no 

net loss” standard. LUBA erred in concluding otherwise.

In its second assignment of error, the Tribe contends that LUBA’s order misapplied the substantial evidence standard of review and is unlawful in substance in 

failing to consider evidence supplied by the Tribe based on 

its indigenous knowledge. We have held that LUBA properly deferred to the board’s narrow construction of DCC 

18.113.070(D) that negative impacts are to be measured 

only by the resort’s impact on the system, not the cumulative impacts of drought or other basin-wide water policy and management issues. As for indigenous knowledge 

related specifically to impacts of the resort, in its briefing, 

the Tribe argued that “indigenous knowledge,” to which 

the Tribe asserts the county paid short shrift, consisted of 

the entirety of the comments and materials submitted by 

the Tribe, including exhibits, and testimony from Smith, 

regarding the fish resources of the Deschutes Basin. At oral 

argument before us, the Tribe argued that if the Tribe had 
Cite as 332 Or App 361 (2024) 387

had sufficient time for preparation for the hearing before the 

board, it could also have presented as indigenous knowledge 

evidence concerning the impact of the resort’s pumping on 

very specific seasonal fishing grounds.

On this assignment, we are guided by our standard 

of review, under which we consider only whether LUBA 

correctly applied the substantial evidence standard in its 

determination that the county’s decision demonstrates that 

the county considered the Tribe’s evidence concerning indigenous knowledge and weighed the Tribe’s evidence against 

Thornburgh’s evidence. Given the limited record before the 

county, we conclude that LUBA did not err.

But, assuming that LUBA remands the case to the 

board for consideration of the Tribe’s arguments relating to 

the treaty-protected fishery resource on the first assignment 

of error, we highlight that remand will allow an opportunity 

for the Tribe to present evidence of indigenous expertise 

and knowledge for the board’s consideration that the Tribe 

asserts it did not have adequate time to present due to its 

late involvement in the proceedings.

VII. THORNBURGH’S CROSS-PETITION RELATING 

TO LUBA’S REMAND OF GROUNDWATER COMPLIANCE PROVISIONS

In its cross-petition, Thornburgh challenges LUBA’s 

order determining that groundwater compliance measures 

and reporting requirements set forth in the 2022 FWMP 

are insufficient. Thornburgh contends that LUBA’s order is 

unlawful “in procedure,” because the board and weighed the 

evidence in the record as the factfinder in the first instance, 

rather than reviewing for substantial evidence.

As to groundwater compliance, Section D of the 

2022 FWMP provides:

“For any future rights that may be acquired, compliance 

occurs upon the cessation of pumping of the rights and along 

with any of the following: deed evidencing the transfer of 

ownership, a submittal to OWRD of any of the following: 

(i) an assignment of the water right to Thornburgh, (ii) 

an application that seeks OWRD approval of a transfer to 
388 Confederated Tribes of Warm Springs v. Deschutes Cty.

pump at the Resort property, or (iii) a cancellation in-lieu 

of mitigation.”

(Emphasis added.) LUBA agreed with Bishop’s contention 

that the compliance provision was inadequate to meet the 

“no net loss” standard to the extent that it permitted only a 

“submittal” to OWRD of an application for an assignment of 

a water right to Thornburgh, rather than an actual approval 

of an assignment of the water right.

LUBA said in its order, “We agree with Bishop that 

the county’s findings are inadequate to explain why submittal to OWRD is sufficient to satisfy the no net loss standard with respect to groundwater sources for fish habitat 

mitigation.” LUBA further concluded, “Thornburgh has not 

pointed to any evidence supporting a conclusion that ground 

water right certificate ownership, cessation of pumping, 

and OWRD submittal is sufficient to ensure fish mitigation 

water will be provided as assumed in the 2022 FWMP.”

Thornburgh contends in its cross-petition that 

LUBA misunderstood the compliance provision. Thornburgh 

asserts that there is much evidence in the record that it is 

the cessation of pumping of any newly acquired groundwater interest that results in mitigation, by allowing the water 

to remain in the aquifer in support of fish habitat, and 

that the additional documentation required by an application to the OWRD merely reinforces the cessation of use of 

the water. We have reviewed the record and conclude that 

LUBA correctly applied the substantial evidence standard 

in its evaluation of the compliance and reporting requirements. We therefore reject Thornburgh’s contention on its 

cross-petition.

Reversed and remanded to LUBA on petition of The 

Confederated Tribes of the Warm Springs Reservation of 

Oregon, for consideration of Tribe’s first assignment of error 

to LUBA; affirmed on cross-petition; otherwise affirmed.