Land Use Board dismisses PGE's appeal of fishing platform decision

By Danielle Frost

Smoke Signals staff writer

WEST LINN -- As the Grand Ronde Tribe prepares to fish from the removable platform built at Willamette Falls last October, a challenging undertaking in itself, there is one less thing to worry about.

The state Land Use Board of Appeals dismissed the case filed by Portland General Electric in October, which appealed a decision by the city of West Linn that the fishing platform is not regulated by the city’s comprehensive plan and zoning ordinance.

The removable platform was constructed so Tribal members could safely harvest hatchery salmon and steelhead from rock outcroppings located near a PGE hydropower facility at the falls.

The Tribe had filed a motion to intervene in the case, requesting a dismissal based on PGE not filing the appeal within the 21-day time limit set forth in state law. Therefore, the Tribe argued, the Land Use Board of did not have jurisdiction in the case.

The Tribe applied for and received approval of a waterway structure registration application from the Department of State Lands in August 2018. The fishing platform was completed in late October.

PGE objected to West Linn’s decision not to regulate the structure and filed an appeal on Oct. 12, stating that its attorney had not notified them until Sept. 25 that the city’s decision could be a land use decision.

However, the Land Use Board of Appeals disagreed with that argument as PGE conceded it had received a copy of the Tribe’s application for the fishing platform on Aug. 23.

“Having obtained a copy of the decision, petitioner may not delay the 21-day appeal period by simply failing to read the copy of the decision in its possession, recognize that it could be a land use decision, or timely transit a copy to its attorney,” the decision states.

In the Tribe’s Aug. 7 waterway structure registration application, West Linn Planning Manager John Boyd said that the fishing platform project was not regulated by the local comprehensive plan and zoning ordinance.

“The city’s present understanding of (Oregon Administrative Rule) 635-041-0610 is that it is intended to preempt the regulatory authority of the city with respect to structures permitted by the rule,” he wrote.

Boyd was referring to the Oregon Department of Fish & Wildlife’s April 2016 decision to allow the Grand Ronde Tribe ceremonial salmon and steelhead harvesting rights at Willamette Falls. The ruling also states fishing can occur from the shore or a single platform erected within the designated fishing area to be constructed in a location “mutually agreed upon between the director and the Tribe.”

On Sept. 21, PGE revoked permission allowing Grand Ronde Tribal use of its land to access and build a fishing platform, which meant Tribal Natural Resources Department employees had to undertake the tedious and more dangerous process of hauling supplies across the river from the Oregon City side of the falls to the West Linn side.

Previously, the Tribe was allowed to access the site from PGE property on the West Linn side to conduct ceremonial fishing and perform blessings, a much safer option than crossing the river.

According to its website, the Land Use Board of Appeals was created in 1979 and has exclusive jurisdiction to review governmental land use decisions. The Board of Appeals was created to simplify the appeals process, speed up resolution of land use disputes and provide consistent interpretation of state and local land use laws.

The three-member board, appointed by the governor, serves four-year terms. Members, who are confirmed by the Oregon Senate, must be members of the Oregon State Bar.

Grand Ronde Tribal members started traditionally fishing with dip nets from the platform site on Tuesday, April 30, after erecting the fishing platform on Monday, April 29.