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Not all land use law is concerned with housing, agricultural or industrial policy. Sometimes it deals with acknowledging and remediating historic wrongs that besmirch our fair state. In this vein, the Land Conservation and Development Commission (LCDC), relying on rulemaking advisory group recommendations, adopted new administrative rules focused on preserving our indigenous cultural resources.

In addition to what are typically considered archaeological sites, cultural areas include geologic remains (house pit villages or funerary sites) and landscape features that are integral to a historical or tribal practice. These resources, located primarily on public lands, are often looted by those who wish to possess or sell objects, notwithstanding laws criminalizing those actions.

When the original (1974) statewide planning goals were adopted, Goal 5 required that local governments inventory a long list of resource types, such as riparian, wetland, wildlife, historic, scenic and 鈥渃ultural areas鈥� in a one-size-fits-all protection scheme. The problem was that once a cultural area was inventoried, it was likely to be vandalized, so tribal governments and state agencies were reticent to provide information. Thus, relatively few sites were designated.

Over the next quarter-century, trust between tribes and the state was built up 鈥� partially by the passage of laws prohibiting disturbance of sites and removal of objects and by generally prohibiting disclosure of archaeological sites under Oregon鈥檚 public records laws. In 2021, representatives of federally recognized tribes in Oregon testified before the LCDC regarding the inadequacy of Goal 5 implementation for cultural resources. In 2022, Department of Land Conservation and Development (DLCD) staff convened a tribal work group, followed by a rulemaking advisory committee reflecting multiple viewpoints with tribes, landowners, state and local government officials, historical experts, and others. The questions were difficult 鈥� What resources should be protected and how can it be done, especially with a need for secrecy in an otherwise open planning process?

Ultimately, the LCDC proceeded with promulgating rules relating to two basic categories of cultural resources: archaeological sites (those that are on the state鈥檚 confidential database) and significant cultural landscape features (SCLFs). A local government does not have to amend its local plan to include archaeological sites but when it receives information of a known or suspected archaeological site, 鈥渢he local government will use the information when considering land use applications,鈥� while still retaining confidentiality. If a local government wants to protect an SCLF, it may do so basis but may require a plan amendment and regulatory protections or an intergovernmental agreement with the relevant tribes, either of which runs the risk of disclosing the site and its resources.

Local governments must now amend their land use application forms to notify applicants of laws and obligations regarding cultural resource sites and objects. Moreover, for most development permits, local governments must provide notice to all 鈥渢ribes with an ancestral connection to the land鈥� within their jurisdiction to request information on negative impacts to the 鈥渒nown or suspected archaeological site鈥� and include tribes in the list of interested parties receiving notice of completed applications. Where a tribe responds to the notice at the first evidentiary hearing on the application, the response must be included within the record and the local government must consult with the State Historic Preservation Office (SHPO) and recommend appropriate mitigation.

Even if there were no locally designated SCLFs, a county reviewing an application for development on rural land must also give tribal notice if there is potential to negatively impact a landscape feature of cultural value. Where a tribe identifies a negative impact, the county must offer to arrange a meeting with the tribe to discuss and identify voluntary measures to avoid or mitigate impacts. Where voluntary measures are identified, the county must require compliance through conditions of approval.

The LCDC certainly had to walk a fine line in adopting these rules and certainly everyone gained something. Tribes will have notice of development that could impact resources. The public will have a better understanding of their responsibilities regarding these resources. Local governments will have further opportunity to meet with tribes to further protection objectives.

That said, there are some significant misses with this rule. First, this rule defines SCLFs as 鈥渢ribal鈥� resources, and it is unclear why places significant to other cultures were not also included.

Second, although all archaeological sites on the state inventory are designated for protection by operation of this rule, given the confidential nature of the list, the public or property owners may not know of the designation until a development application is filed, giving them no notice or right to appeal this determination. The tribes and the state have that information and to some extent it is also available to an applicant through a state-certified archaeologist (though hiring one may not be affordable). But interested third parties have no right to that information, which may call into question the fundamental fairness of the proceedings. Additionally, there is no mechanism for dealing with conflicts should a tribe, SHPO or state-certified private archaeologist disagree.

The good news is that this rule does not take effect until Jan. 1, 2026, allowing the DLCD to work with tribes and local governments to address these outstanding issues. These rules go a long way toward safeguarding Native American cultural resources, continuing to build trust and repairing some of the damage to those resources over the past two centuries.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.