Ambre Energy Request for Hearing

5/20/2018 Ambre Energy Request for Hearing

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Page 1 - REQUEST FOR HEARING SCHWABE, WILLIAMSON & WYATT, P.C.Attorneys at LawPacwest Center

1211 SW 5th Ave., Suite 1900Portland, OR 97204

Telephone: 503.222.9981

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OREGON DEPARTMENT OF STATE LANDS

In re COYOTE ISLAND TERMINAL

Application No. 49123-RF

REQUEST FOR HEARING

I. INTRODUCTION

Pursuant to ORS 196.825(7), ORS 196.835 and OAR 141-085-0575, Applicant Coyote

Island Terminal, LLC (Coyote Island Terminal or Applicant) hereby requests a hearing on

the State of Oregon Department of State Lands (DSL) denial of Removal-Fill Application

No. 49123-RF (Application). DSL issued its Findings and Order denying the Application on

August 18, 2014.

In its Application, Coyote Island Terminal proposes to place pilings in the Columbia

River to construct a new barge-loading dock at the Port of Morrow near Boardman, Oregon.

Coyote Island Terminal seeks to use the dock to load a bulk commodity into barges for shipment

overseas. Because that bulk commodity is coal, it is a process that the State of Oregon does not

support politically.1 Instead of fairly evaluating Coyote Island Terminals application, DSL

chose to base its decision on factors that far exceed the scope of analysis DSL has previously

engaged in, improperly elevating special interests above long-standing, statutorily preferred Port

industrial uses. In doing so, DSL exceeded its lawful authority while ignoring its legal

obligations. The decision must be reversed.

Coyote Island Terminals proposed dock would be situated within the Port of Morrow in

an area with eight other existing docks, all of which have long served the primary purpose of port

1See Oregonian Article, April 25, 2014:

http://www.oregonlive.com/environment/index.ssf/2014/04/oregon_gov_john_kitzhaber_firm.html
http://www.oregonlive.com/environment/index.ssf/2014/04/oregon_gov_john_kitzhaber_firm.htmlhttp://www.oregonlive.com/environment/index.ssf/2014/04/oregon_gov_john_kitzhaber_firm.htmlhttp://www.oregonlive.com/environment/index.ssf/2014/04/oregon_gov_john_kitzhaber_firm.html


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industrial navigation on the Columbia River. In its decision, DSL found, among other things,

that the dock would unreasonably interfere with tribal fishing at the proposed dock site and that

Coyote Island Terminal did not provide a robust enough analysis of alternatives to dock

construction.

The record is clear regarding fishing at the proposed dock site. Several tug boat captains

and community members with significant experience in the area have stated that they have never

observed tribal fishing in the area of the proposed dock. The dock is slated to be constructed in

an area specifically set aside by the United States Army Corps of Engineers for port industrial

development, is consistent with local land uses, and will be similar to the several other docks

already located within that area. Coyote Island Terminal has demonstrated that the construction

of the dock is necessary for its operations, would provide a considerable benefit to local

communities, and is the best use of water resources in the area. Coyote Island Terminal is

entitled to a permit.

Coyote Island Terminal respectfully requests that within 30 days you refer this matter to

the Office of Administrative Hearings for a contested case hearing pursuant to ORS 196.825(7),

ORS 196.835 and OAR 141-085-0575.

II. REASONS FOR HEARING

Pursuant to OAR 141-085-0575(1), Coyote Island Terminal submits the following

reasons for the request for hearing:

A. OVER-ARCHING REASONS AND LEGAL ISSUES

1. DSL failed to apply its rules consistently to Coyote IslandTerminals Application in violation of OAR 141-085-0506(2).

2. DSL failed to act consistently with its past practice in processingother similar applications. See ORS183.482(8).

3. DSL erroneously interpreted and applied its statutes and rules inthe decision.


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4. The DSL decision is based on considerations outside the scope ofstatutory and rule requirements.

5. DSLs decision is based on general, conclusory findings that are

not supported by substantial evidence in the record.

6. The decision violates the Commerce Clause of the United StatesConstitution by impermissibly restricting interstate commerce.

B. REASON/ISSUES RELATED TO DSLCONSIDERATIONS (ORS196.825(3);

OAR141-085-0565(4))

1. DSL erred in finding that the social, economic or other publicbenefits likely to result from the proposed fill or removal do not

support issuance of a permit. Coyote Island Terminal has

demonstrated that there will be significant social, economic, andpublic benefit from the proposed fill or removal; DSL ignored

evidence in the record to demonstrate the public benefits, gave

undue weight to public comments opposing coal; and had no

factual basis for its findings related to fishing.Sub-reasons may include, but are not limited to:

a. DSL erred in considering evidence of social, economic andpublic impacts likely to result from the proposed fill

because the statute directs DSL to consider public benefits.

b. DSL erred in considering evidence of social, economic andpublic impacts likely to result from the proposed fill andthe project it facilitatesbecause the rule limits DSLs

consideration to the social, economic and public benefits of

the fill.

c. DSL erred in finding that the proposed fill will not directlymeet a public need; Coyote Island Terminal hasdemonstrated that the fill will directly meet the public need

for jobs and economic development in Morrow County and

across the state.

d. DSL erred in finding that there is a low public need for theproposed fill; Coyote Island Terminal has demonstratedthat there is a significant public need for jobs and economic

development in Morrow County and across the state.

e. DSL erred in finding that evidence regarding social,economic and other benefits (except fisheries) is


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inconclusive; Coyote Island Terminal has demonstrated

that there will be significant social, economic, and public

benefit from the proposed fill.

f. DSL erred in finding that the preponderance of theevidence demonstrates that there is a small but importantlong-standing fishery at the project site, which is itself a

social, economic and other benefit to the public. The

Tribal fishery will not be impacted by the proposed fill, andthe Tribes submitted no information regarding the broader

public benefit from fishing at that location.

g. DSL erred in finding that the fishery is more significantthan the public benefits that may be derived from the

proposed fill. The public benefit from the proposed dock

far outweighs any negligible benefit from any fisherylocated at the proposed dock location.

h. DSL erred in failing to consider information submitted bythe Applicant responding to public comments and

demonstrating the social, economic and public benefit ofthe project. Coyote Island Terminal submitted significant

information to DSL, which it did not address in its decision,

and which directly contradicts its findings.

2. DSL erred in finding that there is little, if any, economic cost to

the public if the proposed fill is not accomplished. Coyote IslandTerminal demonstrated that there will be tangible, significant

economic costs to local and state communities if the dock is not

constructed.

3. DSL erred in finding that Coyote Island Terminals alternativesanalysis does not support that the proposed fill is the practicable

alternative with the least impact to waters of this state. Coyote

Island Terminal submitted a robust alternatives analysis whichdemonstrated that the construction of the dock was the practicable

alternative with the least impact to waters of this state.

Sub-reasons may include, but are not limited to:

a. DSL erred in failing to make a finding regarding theavailability of alternatives to the project for which the fillor removal is proposed. DSL did not determine which

alternatives other than the proposed alternative, if any, were

practicable and available to Coyote Island Terminal.


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b. DSL erred in finding that the Application is inconclusive asto why some alternatives which may have less impact to

waters of the state are not practicable. Coyote IslandTerminal demonstrated that there are no practicable

alternatives which are available to Coyote Island Terminal

and have less impact on waters of the state.

c. DSL erred in applying different standards to Coyote IslandTerminals alternatives analysis than it has to other similarprojects.

4. DSL erred in refusing to make specific findings regarding theavailability of alternative sites for the proposed fill. Coyote Island

Terminal demonstrated that there were no alternatives sites

available for its proposed project.


a. DSL erred in requiring the Applicant to look at alternativesites that did not involve any fill rather than alternative

sites for the proposed fill as required by statute and rule.

5. DSL erred in finding that the proposed fill does not conform tosound policies of conservation and that the record is inconclusiveas to whether the proposed fill would interfere with public health

and safety. Coyote Island has demonstrated that the proposed fill

conforms to sound policies of conservation and would not interfere

with public health and safety.Sub-reasons may include, but are not limited to:

a. DSLs rules limit its consideration of this factor to theproposed fill. DSL erred in considering public comments

regarding impacts that are not directly related to theproposed fill (e.g. impacts from operation of the facility,

train and barge traffic, etc.).

b. DSL erred in finding that the proposed fill would obstructthe alleged fishery at the project area. The record is clear

that there is not a fishery at the project area, and that even ifthere were, the project would not interfere with such uses.

c. Impacts to fishing fall outside the scope of this factor andDSL erred in considering such impacts.

d. DSL erred in failing to consider information submitted bythe Applicant responding to public comments and


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demonstrating that the project conforms to sound policies

of conservation and will not interfere with public health

and safety. Coyote Island Terminal submitted significantinformation to DSL which it did not address in its decision,

and which directly contradicts its findings.

e. DSLs finding violates the commerce clause of the UnitedStates Constitution by impermissibly restricting interstate

commerce.

6. DSL erred in finding that the proposed fill is not in conformancewith existing public uses of the waters. Coyote Island TerminalsApplication supports the long standing and primary use of the area

for navigation, and demonstrates that the proposed fill will not

interfere with any secondary use of the area for fishing.


a. DSLs rules limit its consideration of this factor to theproposed fill. DSL erred in relying on alleged impacts to

tribal fishing that are not directly related to the proposed fill

(e.g. impacts related to operation of the facility and bargetraffic).

b. DSL erred in failing to consider information submitted bythe Applicant responding to public comments and

demonstrating that the project not only conforms to existing

public uses, but is the best use of the states water resourceswithin the Port of Morrow. Coyote Island Terminal

submitted significant information to DSL which it did not

address in its decision, and which directly contradicts itsfindings.

7. DSL erred in finding that Coyote Island Terminal has not providedall practicable mitigation to reduce the adverse effects of the

proposed fill or removal in the manner set forth in ORS 196.800.Coyote Island Terminal provided a mitigation plan to offset

impacts of the proposed fill, as required under OAR 141-085-

0550(5)(p) and DSL rules, and offered a wide range of mitigationoptions if necessary to offset impacts to fishing uses if DSL wereto Determine fill would have an adverse impact on fishing



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a. DSL erred in finding that the Application was missing thefinancial assurance document necessary for DSL approval.

Coyote Island Terminal submitted the required financialassurances to DSL.

b. DSL erred in finding that the Application required long-term protection documents prior to DSL approval. Such

assurances cannot be finalized until the permit application

is granted, and should be a permit condition.

c. DSL erred in finding that the Application was missinglong-term protection documents necessary for DSLapproval. Coyote Island Terminal appropriately committed

itself to entering into the necessary long-term protection

agreements once the project was approved and should have

been a permit condition.

d. DSL erred in finding that the Applicant did not propose anyfishery impact mitigation. Coyote Island Terminal

proposed significant fishing mitigation for DSL to consider

and include as permit conditions.

e. DSL erred in finding that it was insufficient for theApplicant to list mitigation measures that it committed to

implement when required for permit issuance. It was

appropriate for Coyote Island Terminal to propose and

commit to several mitigation measures, which DSL couldthen select as it deemed necessary to address any impacts it

found.

C. REASONS/ISSUES RELATED TO DSLDETERMINATIONS (ORS196.825(1))

1. DSL erred in determining that the Application is not consistentwith the protection, conservation and best use of the waterresources of this state as specified in ORS 196.600 to 196.905.

Coyote Island Terminal demonstrated that its application was

consistent with the protection, conservation and best use of the

water resources of this state.Sub-reasons may include, but are not limited to:

a. DSL erred in finding that there is Class I rail service at PortWestward. There is no Class I rail service at Port

Westward.


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b. DSL erred in finding Coyote Island Terminal did notadequately address the potential for access to Class I rail

service and the potential for construction of a rail loop atPort Westward. Coyote Island appropriately addressed

Class I rail service at Port Westward, and was not required

to address the issue further.

c. DSL erred in finding that Coyote Island Terminalsalternatives analysis did not compare the practicability ofrail directly to Port Westward with the practicability of the

proposed development at the Port of Morrow. Coyote

Island Terminals alternatives analysis discussed allpracticable alternatives, including railing directly to Port

Westward.

d. DSL erred in finding and concluding that the evidencesupporting that there is a fishery at the project site is more

persuasive than the evidence submitted by the applicantregarding fishing at the project site. Coyote Island

Terminal submitted the most detailed, factual, and

complete analysis of fishing at the proposed dock location;the information submitted by the Tribes was insufficient to

demonstrate any impact from the project on Tribal fishing.

e. DSL erred in finding that the Applicant did not commit toany specific action or set of actions related to fishing

mitigation. Coyote Island Terminal proposed andcommitted to several mitigation measures, which DSL

should have adopted as it deemed necessary to address any

alleged impacts it found.

f. DSL erred in finding that the Applicant did not demonstratethat the development of a new barge loading facility is thebest use over the alleged fishing use in the area (and erred

in finding that there is fishing use in the area). The record is

clear that the primary use of navigation far outweighs anysecondary fishing use. Importantly, there is not a fishery at

the project area, and even if there were, the project wouldnot interfere with such uses.


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g. Fishing is specifically addressed in OAR 141-085-0565(3)(c), and is not part of the water resources which

the state can consider OAR 141-085-0565(3)(b). DSLerred in considering impacts to fishing in making its

determination that the application is not consistent with the

protection, conservation and best use of water resources.

h. DSL erred in failing to consider information submitted bythe Applicant responding to public comments anddemonstrating that the project conforms to sound policies

of conservation and is the best use of the states water

resources within the Port of Morrow. Coyote IslandTerminal submitted significant information to DSL which

DSL did not address in its decision, and which directly

contradicts DSLs findings.

i. DSLs findings violate the Commerce Clause of the UnitedStates Constitution by impermissibly restricting interstatecommerce.

2. DSL erred in determining that the Application would unreasonablyinterfere with the paramount policy of this state to preserve the use

of its waters for navigation, fishing and public recreation.


a. DSLs rule correctly limits application of this factor to

projects located on state-owned lands. DSL erred in makinga determination regarding the projects potential to

unreasonably interfere with the paramount policy of the

state to preserve its waters for navigation, fishing, andpublic recreation because the project is not located on state-

owned lands.

b. DSL erred in finding that the project would unreasonablyinterfere with the alleged fishery in the states waters at theproject site (and erred in finding that there is a fishery in

the area). There is not a fishery at the project area, and even

if there were, the project would not interfere with suchuses.

c. DSL erred in failing to consider information submitted bythe Applicant responding to public comments received

regarding the projects impacts on fishing and its

furtherance of navigation, the primary use of water


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resources at the Port of Morrow. Coyote Island Terminal

submitted significant information to DSL which it did not

address in its decision, and which directly contradicts itsfindings.

d. DSLs findings violate the Commerce Clause of the UnitedStates Constitution by impermissibly restricting interstate

commerce.

D. OTHER ISSUES OR REASONS FOR THE REQUEST FOR HEARING.

Coyote Island Terminal has attempted in good faith to identify all reasons for the

request for hearing within the 21-day permit appeal period provided by law. Should

additional reasons that were not reasonably apparent become evident during the contested case

proceeding, Coyote Island Terminal reserves the right to request permission to broaden the

scope of this appeal.

Coyote Island Terminal also notes a lack of clarity with respect to the administrative

rules applicable to this request for hearing. Pursuant to the rules in effect at the time the

Application was filed, a request for hearing must state the reasons upon which the hearing is

requested. Under current rules applicable to appeals of permit decisions, the Applicant must

include a specific list of issues, but the requester may amend the request to include additional

issues or clarify existing issues within 15 days of the date that the case is referred to the Office

of Administrative Hearings. CompareOAR 141-085-0575(4) (effective 9/1/14) to OAR 141-

085-0575(1-2) (effective 3/1/11). Each of the above-stated reasons are at the same time

issues for hearing. Regardless of which version of OAR 141-085-0575 applies, Coyote

Island Terminal reserves the right to identify, simplify or clarify issues during the contested

case proceeding in connection with any prehearing conference, or as otherwise may be

allowed by the administrative law judge. See OAR 137-003-0575(4).

For the reasons discussed above, Coyote Island Terminal respectfully requests a contested

case hearing on all issues, as required by law. Without waiving its entitlement to a contested case


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hearing, Coyote Island Terminal is willingto discuss its concerns and potential non-litigation

alternatives to resolving these concerns directly with DSL.

III.

CONCLUSION

Coyote Island Terminal has requested a permit to construct a dock within the Port of

Morrow, an industrial port which has been in an area set aside by the federal government and the

State of Oregon for port industrial use like that proposed by Coyote Island Terminal. The record

is clear that the area proposed for fill is located in low-quality fish habitat in an area infrequently

used for fishing, and which supports existing port navigation uses on a daily basis. In this

regard, Coyote Island Terminals proposal is exactly like the several other docks which DSL has

approved in existing Port areas except for one factor: It is being constructed to barge a bulk

commodity up the Columbia River for shipment overseas, and certain special interests object to

the transport or use of that bulk commodity - coal.

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Ambre Energy Request for Hearing

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Transcript of Ambre Energy Request for Hearing