Warm Springs Tribes challenge Deschutes County resort development over treaty rights

Tribes in Central Oregon are pushing back against a luxury resort development they say could violate their treaty rights. How local officials respond to those concerns could set the tone for future development in a part of the state that continues to grow, even as other metro areas in Oregon shrink.

The planned resort is in a semi-arid region where groundwater declines have recently attracted the attention of state regulators. Wells at the site would ultimately supply nearly 1,000 luxury homes surrounding a manmade lake and a golf course. To offset any impacts on fish and wildlife, the resort developer offered a complicated proposal, one that left leaders of the Confederated Tribes of Warm Springs with lingering concerns about cultural resources, water and climate change.

The tribes asked local governments to honor their treaty rights and elevate their concerns with the resort’s developer. But local officials in this fast-growing part of the state often make decisions without tribal government consultation.

Earlier this year, a majority of Deschutes County commissioners approved a key step forward for Thornburgh. Warm Springs Tribes’ leaders now want a state appeals board to overturn that decision. The Oregon Land Use Board of Appeals heard oral arguments Tuesday, with a ruling expected in December.

The appeal raises broad questions about tribal sovereignty in local planning, groundwater pumping in Oregon and whether local leaders are prepared to seriously address the state’s obligations to its Indigenous residents.

‘They’re looking for any reason for it to stop’

In a recent interview, Warm Springs CEO Bobby Brunoe, who is Wasco, returned several times to “the big thing hanging over everybody’s head that we all have to deal with now.”

“I keep going back to climate change because we’ve been in a drought for quite a while now,” Brunoe said. “Are we all going to work together to fix it, or be more in balance with it?”

The reality of the changing climate in Central Oregon is hard to miss. Every summer since 2019 county leaders have declared a drought emergency. The national drought monitor has consistently listed the region among the most affected parts of the state. Each summer, wildfire smoke degrades air quality and fires threaten to destroy people’s homes.

But for Deschutes County Commissioner Tony DeBone, the tribes arrived at the table far too late to question Thornburgh’s plans.

“People that are very motivated about climate change and bad things happening and don’t want the next person to move to Central Oregon, they want (the resort) to stop, and they’re looking for any reason for it to stop,” DeBone said.

Local governments in Oregon make their own rules for how, and if, they consult with tribes.

“I have never been in a spot where a land use decision is dependent on what would be the tribes’ feedback on this,” DeBone said.

He’s been in office 13 years, as Deschutes County’s population boomed by almost 30%, and he was among the board majority that voted to ignore tribal objections to Thornburgh.

This is the first time Warm Springs has entered the fray over the resort, which has seen two decades of protests and legal challenges from other area residents. County officials didn’t show up to the tribes’ appeal hearing this week. Instead, they left the legal rebuttal in the hands of an intervenor: Thornburgh developer Kameron DeLashmutt.

Expert analyses have shown groundwater pumping at the resort site can be offset with conservation measures elsewhere, DeLashmutt said in a recent email, with the overall effect on fish being “just noise.”

Plus, he added, in his view “no state law or local provision required special notice or consultation to be given to the tribes.”

Rights reserved

Thornburgh’s site is about 50 miles from the Warm Springs reservation’s border, but it is within the tribes’ ancestral lands, where certain rights for tribal members are protected by a federal treaty from 1855.

The state appeals board is now considering whether the county planning process for Thornburgh is in line with that treaty.

It claimed roughly 10 million acres for the United States, paving the way for about one-sixth of what is now the state of Oregon. The treaty created a reservation a fraction of that size, but reserved the rights of tribal members to take fish at “usual and accustomed stations.”

Cases affirming off-reservation rights like this have been to the U.S. Supreme Court many times before, said Arizona State University law professor Robert Miller, a citizen of the Eastern Shawnee Tribe of Oklahoma.

“Treaty rights are the supreme law of land. No one — state, county, you, or me — can violate tribal treaty rights,” Miller said.

But, Oregon has a history of violations, Brunoe said, such as the construction of hydroelectric dams on the Columbia River without tribal consultation, which decimated treaty-protected fish populations.

A spokesperson for Oregon Gov. Tina Kotek acknowledged that “the state is obligated to have meaningful consultation with Tribes before making any land-use decisions that would affect tribal members or land near reservations.”

“Treaty rights are established by the federal government. The state works with tribes through government-to-government relations to support and implement those rights,” spokesperson Anca Matica said in an email.

Brunoe said Thornburgh has been a case where the developer and local officials ignored the laws of the treaty. Warm Springs co-manages fish and wildlife with state and federal governments, and has long worked with local governments and private developers to find compromises, he said.

“We know development’s going to happen,” he added.

“There’s a lot of those types of stories you’ve never heard about where we’ve worked with others and been able to figure it out, and then, there’s the Thornburghs.”

Last year, the tribes contacted Deschutes County, about five months after the county sent state and federal agencies governmental notices about changes to the resort’s plans, according to the tribes’ appeal.

Before pursuing a legal fight, a tribal natural resource manager submitted numerous comments to Deschutes County and asked officials for more time to weigh in.

In their final decision, county commissioners found the tribes “provided no expert testimony on water in any respect.”

The rejection without further discussion left the tribes with little recourse outside the legal system.

“That was disappointing,” Brunoe said. “Very disappointing.”

Promises of change

In the midst of this conflict, Warm Springs staff asked Deschutes County to begin notifying them of certain land-use applications, such as destination resorts or projects that could rezone farmland for residential subdivisions.

Deschutes Community Development Director Peter Gotowsky said planners have now established “a coordination relationship” with the tribes. That’s as leaders from the City of Bend are also promising a different approach.

This month, city councilors met with the Warm Springs Tribal Council for the first time. The roughly 22-minute meeting ended with a pledge from Bend Mayor Melanie Kebler to convene annually.

“While I’m in office, it’s my intention to seriously follow through and continue to make that relationship happen and to continue to listen to what the tribes have to say,” Kebler said in an interview.

At the historic intergovernmental meeting, Warm Springs Tribal Council Vice Chairman Ray “Captain” Moody seemed to take Bend’s intentions with a grain of salt.

“It’s nice that you ask our opinion, but we are very cautious to watch what you’re doing, and the city as it grows,” said Moody, who is a Warm Springs Tribal Member from the Tyghpum band.

He compared the demands of the booming 34-square-mile city to the 1,000-square-mile reservation downstream and brought up the Deschutes River connecting them.

“Keep us in mind as to the water always,” he said. “We’d like to be heard.”