Ambre Energy Request For Hearing

Page 1 - REQUEST FOR HEARING
SCHWABE, WILLIAMSON & WYATT, P.C.

Attorneys at Law
Pacwest Center
1211 SW 5th Ave., Suite 1900
Portland, OR 97204
Telephone: 503.222.9981
PDX\123728\182016\MAN\14437755.7
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

1
See Oregonian Article, April 25, 2014:
http://www.oregonlive.com/environment/index.ssf/2014/04/oregon_gov_john_kitzhaber_firm.html

Attorneys at Law
Pacwest Center
Portland, OR 97204
Telephone: 503.222.9981
PDX\123728\182016\MAN\14437755.7
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 Island
Terminals Application in violation of OAR 141-085-0506(2).
2. DSL failed to act consistently with its past practice in processing
other similar applications. See ORS 183.482(8).
3. DSL erroneously interpreted and applied its statutes and rules in
the decision.

Attorneys at Law
Pacwest Center
Portland, OR 97204
Telephone: 503.222.9981
PDX\123728\182016\MAN\14437755.7
4. The DSL decision is based on considerations outside the scope of
statutory 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 States
Constitution by impermissibly restricting interstate commerce.
B. REASON/ISSUES RELATED TO DSL CONSIDERATIONS (ORS 196.825(3);
OAR 141-085-0565(4))
1. DSL erred in finding that the social, economic or other public
benefits 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, and
public 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 and
public 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 and
public impacts likely to result from the proposed fill and
the project it facilitates because 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 directly
meet a public need; Coyote Island Terminal has
demonstrated 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 the
proposed fill; Coyote Island Terminal has demonstrated
that 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

Attorneys at Law
Pacwest Center
Portland, OR 97204
Telephone: 503.222.9981
PDX\123728\182016\MAN\14437755.7
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 the
evidence demonstrates that there is a small but important
long-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, and
the Tribes submitted no information regarding the broader
public benefit from fishing at that location.
g. DSL erred in finding that the fishery is more significant
than 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 fishery
located at the proposed dock location.
h. DSL erred in failing to consider information submitted by
the Applicant responding to public comments and
demonstrating the social, economic and public benefit of
the 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 Island
Terminal 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 alternatives
analysis 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 which
demonstrated that the construction of the dock was the practicable
alternative with the least impact to waters of this state.
a. DSL erred in failing to make a finding regarding the
availability of alternatives to the project for which the fill
or removal is proposed. DSL did not determine which
alternatives other than the proposed alternative, if any, were
practicable and available to Coyote Island Terminal.

Attorneys at Law
Pacwest Center
Portland, OR 97204
Telephone: 503.222.9981
PDX\123728\182016\MAN\14437755.7
b. DSL erred in finding that the Application is inconclusive as
to why some alternatives which may have less impact to
waters of the state are not practicable. Coyote Island
Terminal 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 Island
Terminals alternatives analysis than it has to other similar
projects.
4. DSL erred in refusing to make specific findings regarding the
availability 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 alternative
sites 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 to
sound policies of conservation and that the record is inconclusive
as 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.
a. DSLs rules limit its consideration of this factor to the
proposed fill. DSL erred in considering public comments
regarding impacts that are not directly related to the
proposed fill (e.g. impacts from operation of the facility,
train and barge traffic, etc.).
b. DSL erred in finding that the proposed fill would obstruct
the alleged fishery at the project area. The record is clear
that there is not a fishery at the project area, and that even if
there were, the project would not interfere with such uses.
c. Impacts to fishing fall outside the scope of this factor and
DSL erred in considering such impacts.
d. DSL erred in failing to consider information submitted by

Attorneys at Law
Pacwest Center
Portland, OR 97204
Telephone: 503.222.9981
PDX\123728\182016\MAN\14437755.7
demonstrating that the project conforms to sound policies
of conservation and will not interfere with public health
and safety. Coyote Island Terminal submitted significant
information 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 United
States Constitution by impermissibly restricting interstate
commerce.
6. DSL erred in finding that the proposed fill is not in conformance
with existing public uses of the waters. Coyote Island Terminals
Application 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 the
proposed 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 barge
traffic).
b. DSL erred in failing to consider information submitted by
demonstrating that the project not only conforms to existing
public uses, but is the best use of the states water resources
within the Port of Morrow. Coyote Island Terminal
submitted significant information to DSL which it did not
address in its decision, and which directly contradicts its
findings.
7. DSL erred in finding that Coyote Island Terminal has not provided
all 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 mitigation
options if necessary to offset impacts to fishing uses if DSL were
to Determine fill would have an adverse impact on fishing


Attorneys at Law
Pacwest Center
Portland, OR 97204
Telephone: 503.222.9981
PDX\123728\182016\MAN\14437755.7
a. DSL erred in finding that the Application was missing the
financial assurance document necessary for DSL approval.
Coyote Island Terminal submitted the required financial
assurances 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 missing
long-term protection documents necessary for DSL
approval. 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 any
fishery 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 the
Applicant 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 could
then select as it deemed necessary to address any impacts it
found.
C. REASONS/ISSUES RELATED TO DSL DETERMINATIONS (ORS 196.825(1))
1. DSL erred in determining that the Application is not consistent
with the protection, conservation and best use of the water
resources 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.
a. DSL erred in finding that there is Class I rail service at Port
Westward. There is no Class I rail service at Port
Westward.


Attorneys at Law
Pacwest Center
Portland, OR 97204
Telephone: 503.222.9981
PDX\123728\182016\MAN\14437755.7
b. DSL erred in finding Coyote Island Terminal did not
adequately address the potential for access to Class I rail
service and the potential for construction of a rail loop at
Port 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 Terminals
alternatives analysis did not compare the practicability of
rail directly to Port Westward with the practicability of the
proposed development at the Port of Morrow. Coyote
Island Terminals alternatives analysis discussed all
practicable alternatives, including railing directly to Port
Westward.
d. DSL erred in finding and concluding that the evidence
supporting that there is a fishery at the project site is more
persuasive than the evidence submitted by the applicant
regarding 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 to
any specific action or set of actions related to fishing
mitigation. Coyote Island Terminal proposed and
committed 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 demonstrate
that the development of a new barge loading facility is the
best 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 any
secondary fishing use. Importantly, there is not a fishery at
the project area, and even if there were, the project would
not interfere with such uses.


Attorneys at Law
Pacwest Center
Portland, OR 97204
Telephone: 503.222.9981
PDX\123728\182016\MAN\14437755.7
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). DSL
erred 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 by
demonstrating 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 Island
Terminal 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 United
commerce.
2. DSL erred in determining that the Application would unreasonably
interfere 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 making
a determination regarding the projects potential to
unreasonably interfere with the paramount policy of the
state to preserve its waters for navigation, fishing, and
public recreation because the project is not located on state-
owned lands.
b. DSL erred in finding that the project would unreasonably
interfere with the alleged fishery in the states waters at the
project 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 such
uses.
c. DSL erred in failing to consider information submitted by
the Applicant responding to public comments received
regarding the projects impacts on fishing and its
furtherance of navigation, the primary use of water

Attorneys at Law
Pacwest Center
Portland, OR 97204
Telephone: 503.222.9981
PDX\123728\182016\MAN\14437755.7
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 its
findings.
d. DSLs findings violate the Commerce Clause of the United
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. Compare OAR 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

Attorneys at Law
Pacwest Center
Portland, OR 97204
Telephone: 503.222.9981
PDX\123728\182016\MAN\14437755.7
hearing, Coyote Island Terminal is willing to 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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Page 1 - REQUEST FOR HEARING

SCHWABE, WILLIAMSON & WYATT, P.C.

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