Wallowa County Circuit Court Judge Phillip Mendiguren signed a final judgment last Wednesday in the K&B Family Partnership's Measure 37 claim on 61 acres south of Joseph. A similar final judgment is expected in the Kimball family's Measure 37 claim to develop 14 acres on the west side of Wallowa Lake.
The final judgment in the K&B case was actually written by Attorney Rahn Hostetter, who represented both the K&B partnership and the Kimball family, and Mendiguren signed the judgment Wednesday.
The judgment ruled that the county's land development ordinance, specifically articles 44a and 44f, had reduced the value of K&B's 61 acres. Article 44 in the county's ordinance relates to the protection of historical and archeological sites. Article 44 is the county's ordinance implementing the Oregon's "Goal 5" relating to the preservation of historical sites.
The final judgment on K&B's Measure 37 claim clarified a few typographical errors on Mendiguren's previous judgment denying the appeals of the Center for Tribal Water Advocacy and the Confederated Tribes of the Umatilla. Mendiguren's previous judgment confused the two Measure 37 claims in a few spots, Hostetter said.
"We obviously believe the decision is not correct," said Harold Shepherd, of the Center for Water Advocacy in Pendleton. (The environmental group recently dropped the word "tribal" from its title to avoid confusion that it was affiliated with the Nez Perce Tribe. But in its legal filings it must retain the name until the case runs its course.)
The environmental group hadn't decided yet on whether to file an appeal in the case.
The Oregon Department of Land Conservation and Development issued its final ruling on Sept. 22 on K&B's Measure 37 claim.
It denied K&B's case on the basis that Oregon's Goal 5, from which the county's article 44 was designed to implement, was in place prior to when K&B Family Partnership acquired the property on Feb. 1, 2002.
Hostetter believed that the state ruling did not overturn the circuit court's decision in that the ruling essentially states that it has no authority to overturn or remedy county ordinances.
The K&B Family Partnership has also filed a case in Circuit Court against the Oregon State Historical Preservation Office (SHIPO).
"What it asks for is a declaration that there are no archaeological sites" at the K&B property, Hostetter said.
Both the Umatilla and Colville tribes, who both have historical links to the Nez Perce Tribe, have filed responses in the case.
The K&B's SHIPO case asked that they be awarded $5 million in the event that it is found that there were indeed archaeologically or culturally significant sites on the K&B land.
"If we're paid $5 million, in our view, then we've essentially lost the case," Hostetter said.