Walmart appeal hearing in Salem

A three-judge panel of the Oregon Court of Appeals heard the case May 9, and a decision could be made in as soon as a few weeks to as long as a year or more, said Karl Anuta, attorney for Citizens for Responsible Development in The Dalles, which filed the appeal.

Anuta argued that state law and a 1979 Oregon Supreme Court case requires the Oregon Department of State Lands (DSL) to find a public need that outweighs damage to wetlands. Carson Whitehead, an attorney with the Oregon Department of Justice, argued that the law does not make such a requirement, and if it did, no private project would win a permit.

Anuta countered that the DSL “has always found public needs, even for private projects.”

The relevant phrase was language that said the state “shall consider” public need and benefit when it decides whether to issue wetlands fill permits. Whitehead said in briefs filed to the appeals court that the word “consider” does not mean the state “must find that every project has a public need.”

He argued that the legislature knew “how to distinguish between a finding and simply considering a factor… Shall ‘consider’ means what the word says it means.”

Anuta, however, argued that the phrase “shall consider” was not as “permissive and toothless” as the state claims.

Anuta said the legislature intended that all doubt be resolved in favor of the protection and preservation of state waters.

“That’s what the statute is intended for,” Anuta said. “It is not intended to allow fills for a private company to make a profit when there’s no public benefit in exchange.”

Whitehead said the law only requires finding a public benefit if a project would put fill material into estuaries, which was the basis of the 1979 Supreme Court case, which had to do with an effort to put fill material into Coos Bay.

Anuta argued the public benefit rule applied to all waters, not just estuaries like Coos Bay.

Whitehead said that while the DSL’s findings were inconclusive on whether the Walmart fill permit would meet a public need, extensive mitigation conditions imposed on Walmart supported issuing the permit.

Walmart applied in 2009 for a permit to remove and fill wetlands at a parcel along Interstate 84 near Chenowith Creek. The 18.1-acre site has rare wetlands called vernal pools, which are shallow depressions which fill with water in rainy season but are dry the rest of the year. The site has 49 such pools.

The permit was issued in 2013, and appealed by the Citizens group that year. An administrative law judge upheld the permit in June of 2014, and the Citizens group appealed that ruling to the court of appeals in December 2014.

Anuta said the point of the relevant law was preservation of wetlands. He argued “the fundamental problem here is that the state seems to think this statute is about mitigation.”

Anuta argued the DSL is also required to seek alternative plans and designs, but did not do that adequately in this case.

The DSL found that Walmart’s analysis of alternative sites was thorough and persuasive. Walmart looked at seven different sites – all of which were rejected as not commercially viable — and three different layouts on the property itself.

To mitigate wetlands damage, Walmart shrunk the parking lot by 92 spots and realigned the access road. This reduced wetlands impacts to 2.17 acres. The final layout on the property was deemed by DSL the most practicable alternative with the least impacts to higher functioning wetlands.

The state found Walmart could not totally avoid impacting wetlands because they are scattered throughout the site.

Anuta argued the state did not push for a smaller store, and allowed Walmart to maintain that a superstore, at 137,000 square feet, was the only viable option and the purpose of the project.

Whitehead, the state’s attorney, argued that laws do not require the state to force Walmart to consider a much smaller store.

Anuta said the state asked Walmart about the feasibility of building a smaller store but got no answer and didn’t pursue the matter.

The state’s attorney said that the law requires DSL to determine that wetlands permits are consistent with protecting water resources, and that the removal or fill of wetlands will not “unreasonably interfere” with water uses like navigation, fishing and public recreation.

One judge questioned Whitehead on how the DSL could simultaneously be “inconclusive” on whether the project met a public need, yet also determine the project doesn’t unreasonably interfere with the paramount task of preserving the waters of the state for navigation, fishing and public recreation.

The judge said the state has “reduced the harm but we’ve not achieved any public benefit or need for the loss of this public resource…. How can the director nonetheless conclude it doesn’t unreasonably detract?”

Whitehead said it was “inconclusive” on whether it met a public need, so it wasn’t a finding of no public need. He also noted there was evidence that the store would increase the tax base and provide economic development.

Whitehead said the wetlands permitting process is “not an absolute preservation standard.”

Whitehead also noted the “rigorous” mitigation required in the fill permit.

Whitehead said the 1979 Supreme Court case had to do with “filling a part of Coos Bay so of course there are going to be impacts.” He noted this piece of private property, which is zoned for industrial/commercial use, has vernal pools, which have an “important ecological function, but I think the impacts to those particular values are different than in the [1979 case] context, and that matters.”

Whitehead said in the relevant law “there’s simply no requirement for a finding that there is in fact a public benefit.”

Anuta disagreed, saying that was “absolutely the opposite” of what the 1979 court case concluded. He said the “’unreasonable interfere’ language requires precisely that: a finding of public benefit.”

Anuta said the state “didn’t say, ‘We think this alternative plan is so good that it creates benefits to the public that outweigh the loss of this rare vernal pool wetlands set, and the other wetlands that feed into this salmon bearing stream.’ It didn’t make that finding. It knows how to.”

He said wetlands “are publicly owned resources and we shouldn’t be filling them and the court said that repeatedly.”