Paulina Lake in Newberry National Volcanic Monument is a major draw for anglers and offers a campground accessible only to hikers and boaters. A hiking trail circumnavigates the shoreline. Photo © Jim Yuskavitch
When President George H.W. Bush signed the law creating Newberry National Volcanic Monument in 1990, he intended to preserve and protect a unique 55,000–acre piece of central Oregon consisting of large lakes and coniferous forest amidst a virtual laboratory of geological and volcanic features. But seventeen years after being designated a protected landscape, there is a real possibility that a major development—including a pumice mining operation, geothermal facility and subdivision—may be placed smack in the middle of the monument. The proposed development highlights the unintended consequences of a property rights law passed by voters in 2004 that has made a mess of Oregon’s renowned land–use planning system.
Located within the Deschutes National Forest and under the jurisdiction of the U.S. Forest Service, Newberry National Volcanic Monument has long been a magnet for outdoor enthusiasts. During the summer its two centerpiece lakes, 1,531–acre Paulina Lake and 1,044–acre East Lake, draw hordes of campers and anglers. In addition to Forest Service campgrounds, two resorts provide visitors with rustic cabins, boat rentals and other outdoors–oriented amenities. When winter snows arrive, the monument hosts healthy numbers of snowmobile riders and cross–country skiers.
But the soul of the place is the volcanic landscape, which offers visitors a look into the region’s fiery past. The 500,000–year–old Newberry Volcano caldera, within which the monument lies, encompasses 500 square miles and includes large lava flows, fields of sharp black obsidian and other geological features that attract both sightseers and scientists.
Despite some griping by locals over use restrictions and costs when the monument was first designated, it has proved to be an asset to local communities and residents, providing recreational opportunities and increased tourism as well as preserving a unique place for future generations. All seemed to have turned out well— that is, until 2004, when Oregonians passed Ballot Measure 37.
The measure was one of a long series of attempts to overturn Oregon’s farsighted land–use law, Senate Bill 100, which was passed by the state legislature and signed by Oregon’s legendary Governor Tom McCall in 1973. That law preserved forest and farmland by severely limiting development on those lands. It also slowed urban sprawl by requiring communities to develop long–term plans to accommodate projected future growth.
Championed by the private property rights group Oregonians in Action and billed as a way to bring fairness to landowners who were prevented from developing their land by existing regulations, Ballot Measure 37 directed state and local governments to either waive any land use regulations that were put into place after a property was purchased or compensate the landowner for the forgone development value. Although vigorously opposed by a wide range of interests ranging from conservation organizations to business groups, the measure passed by a 20 percent margin. Most of the financial backing for the measure came from the timber industry.
As expected, Measure 37 claims began pouring in to county governments when the law went into effect. By November 2006, claims totaled more than $6.1 billion. But one claim, made by James R. Miller of Portland in June 2006, stood out, starkly demonstrating how the new law could pose a substantial threat to publicly owned lands that had been designated for protection.
Miller’s claim addressed a 157–acre private inholding on the west shore of East Lake within Newberry National Volcanic Monument that he said he owned well before the area was designated as protected. Unless Deschutes County, in which the property is located, compensated him for $203 million, he intended to build a geothermal development (there are known geothermal resources in the area), a pumice mine and—eventually—a 100–home subdivision on the site.
The claim caused a great deal of alarm among Deschutes National Forest staff and the public alike. “Our position is that we don’t want to see the level of development that is proposed by the claim,” says Bob Deane, Deschutes National Forest staff officer for recreation, engineering, lands and mining, who testified against the claim before the Deschutes County Board of Commissioners. The Forest Service had even attempted to purchase the property in the early 1980s, but negotiations broke down over the price.
Much to the relief of national monument supporters, the county commissioners denied the claim at a hearing in November 2006 on the basis that Miller had no standing in the matter. Measure 37 only applies to property owners who have owned the land prior to adoption of the land use rules being challenged. Miller is a general partner in a company called LPP Resources, which actually owns the property. Under Oregon law, a general partner is not considered the owner of any property owned jointly by a partnership.
Although conservationists breathed a sigh of relief over that decision, it was a short–lived respite. LPP Resources got its ducks in a row and, shortly thereafter, filed a similar claim naming itself as the owner. A hearing on that claim is scheduled for early 2007.
For opponents of the proposed development plans, the cause is not yet lost. Although most Measure 37 claims have been fairly straightforward, “There are some wrinkles in the ownership of this claim,” says Tom Anderson, director of the Deschutes County Community Development Department. Opponents hope that convoluted ownership history will do the claim in.
The property first came into private ownership in 1969 as a mining claim, but was not patented until 1980. LPP Resources obtained the land in 1988—years after the parcel was zoned by the county as Open Space and Conservation—by absorbing a company that bought it from the original owner. Since Measure 37 waivers cannot be passed down from owner to owner, that gives opponents of the development cause for hope.
“I think we have a good chance of dating ownership to 1988, which would not allow any of the development to be done,” says Pam Hardy, staff attorney with Central Oregon Landwatch, a group fighting the claim. If it were approved, Deane speculates that another attempt would probably be made by the federal government to purchase the property.
Many voters who thought they were helping small landowners and are now seeing claims for large–scale commercial development are beginning to suffer “buyer’s remorse” over their support of Measure 37. Recent approval for a 640–acre development near the Steens Mountain Wilderness and a challenge to preservation rules within the Columbia Gorge National Scenic Area have highlighted the law’s potential threat to public lands. How many more similar Measure 37 surprises will surface remains to be seen, but the proposed development along East Lake is only the first ripple.