Judges on the Oregon Court of Appeals delivered a win to tribes from the Columbia River basin Wednesday.
Three appeals court judges found the Oregon Land Use Board of Appeals, or LUBA, made a mistake earlier this year when it shut down opposition brought by the Confederated Tribes of Warm Springs against Deschutes County.
LUBA arbitrates local land use appeals before they can head to court. The tribes appealed a Deschutes County decision backing Thornburgh, a proposed destination resort near Redmond.
The tribes had argued county land use officials didn’t take treaty rights into account when they backed key plans for the resort last year. But an alliance of tribes from the Columbia River Basin has said the stakes are ultimately much higher than what happens with Thornburgh. Leaders from the Yakama Nation, Nez Perce Tribe and Umatilla Tribes filed briefs supporting Warm Springs’ case because they’ve said it’s part of a broader fight over violated treaty rights and the value of Indigenous expertise.
Deschutes County officials have backed plans for Thornburgh’s 950 luxury homes, lodgings, a golf course and a private lake.
Water supplies for this have long stirred opposition in the semi-arid region. The site is about 50 miles from the Warm Springs reservation’s border, but it is within the tribes’ ancestral lands, where tribal members’ rights to hunt and fish are reserved through a federal treaty from 1855. Other Columbia River basin tribes have similar treaties with the federal government.
Warm Springs leaders have said the resort’s impacts could violate their treaty by harming fish habitat, and that’s something Deschutes County should have considered before it gave Thornburgh the green light.
A map shows the footprint of the nearly 2,000 acre Thornburgh resort site in relation to Redmond, Oregon.
MacGregor Campbell / OPB
Appeals court judges didn’t wade into the Tribes’ broader argument over treaty rights, and instead ruled on a procedural point that keeps a looming fight alive. The appeals judges decided LUBA was wrong to decide the tribes didn’t raise treaty rights early enough in the process, which sends the broader argument back to LUBA to reconsider. LUBA could then send the county back to the drawing board to weigh the resort’s plan and mitigate its environmental impacts against treaty rights.
“If it comes our way, hopefully it comes with guidance,” said Deschutes Commissioner Tony DeBone, who voted in favor of Thornburgh’s now contested mitigation plan.
The brewing conflict over treaty rights and local land use planning could reverberate across the state, he said: “This is taking us into a litigious, undocumented world.”
Warm Springs CEO Robert Brunoe applauded the appeals court decision in a statement.
Confederated Tribes of Warm Springs CEO Robert "Bobby" Brunoe stands in front of a deerskin artwork by Wasco Chief Nelson Wallulatum. November 3, 2023.
Emily Cureton Cook / OPB
“Our Tribal knowledge – both scientific and cultural – is essential to deliver a healthy fishery for our people,” Brunoe said.
A public relations agency representing Thornburgh’s developer put out a statement focusing on a slate of other arguments against the resort that the appeals court rejected.
“We are grateful that the court, in rejecting nine of the ten challenges, is paving the way for Thornburgh to follow through on our desire to reduce our water consumption by one third”, Thornburgh developer Kameron DeLashmutt said in a press release.
Planning for the resort has been underway for decades, but the renewed fight over DeLashmutt’s plans happened after he agreed to eliminate a golf course and reduce water use, triggering a review of key local permits.
DeLashmutt is also battling Oregon regulators in a separate fight over water rights at the resort site, and that case is expected to get a hearing in administrative court this summer.
