DRT South Conflict Assessment Report.pdf

Southern Connection of the Deschutes River Trail

Conflict Assessment Report prepared on behalf of Oregon Consensus by

Mary Orton, The Mary Orton Company, LLC Bend, Oregon mary@maryorton.com a www.maryorton.com a 702.210-9642

Final Report, December 15, 2018

T h e M a r y O r t o n C o m p a n y , L L C ii | P a g e

Table of Contents

Executive Summary Introduction

Background on the Issue Oregon Consensus Role of The Mary Orton Company Methodology Report Organization

Interviewees’ Comments Concerns and Interests

Laws and Regulations Wildlife Access, Connectivity, and Increased Use Off-Leash Dogs Local vs. State/National Decision Neighborhood Impact Social Equity and Environmental Justice

Barriers and Complicating Factors Trust

Public Processes District Management Wildlife Resources Legislative Efforts Alternatives Eminent Domain Elected and Appointed Officials Claiming Support Impacts Bridge Location

Differences as to Fact Level of Development Previous Processes Wild and Scenic Regulations State Scenic Waterways Restrictions Wildlife Presence Conservation Easement Impacts at Rimrock

Lack of Data Polarization Capacity of Stakeholders Laws and Regulations BPRD’s Experience with Restoration

Southern Connection of the Deschutes River Trail Conflict Assessment Report, continued

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Possible Common Ground from Interviewees Possible Alternatives from Interviewees Interviewees’ Perspectives on a Collaborative Process

Recommendations Introduction Collaborative Opportunity Step 1: Trust-Building Conversations Step 2: Neutral Convenor Step 3: Joint Fact-Finding Step 4: Community Collaborative

Convenor Facilitator Process Development Scope Funding Stakeholders to be Involved Board Action Transparency Allow Enough Time Consensus

Summary Attachment A: BPRD Board of Directors Resolution Attachment B: Interview Questions Attachment C: Interviewees Attachment D: Process Ideas from Interviewees

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Executive Summary

The areas close to the Deschutes River are precious: in general, people who are there want to protect what they have, and those who are not desire more access. All persons interviewed for this report are concerned about avoiding negative environmental impacts.

The issue of a southern crossing of the Deschutes River addressed in this report is a controversial one. After being part of a Bend Park and Recreation District bond measure that voters approved in 2012, it has been the subject of several public processes with diverse purposes and outcomes, as well as two unsuccessful legislative attempts to prohibit a bridge.

This conflict assessment report, commissioned by the Bend Park and Recreation District through Oregon Consensus, was designed to advise whether and how a collaborative agreement-seeking process might help address ongoing concerns about the alignment and construction of a trail segment to connect the Deschutes River Trail on the south end of Bend. It is the result of 25 face-to-face interviews of 29 people from September 9 through October 9, 2018. It summarizes their concerns and interests, as well as barriers to addressing those concerns.

The concerns of stakeholders are complex and include wildlife, the ecosystem, social equity, access, neighborhood impacts, private property rights, and erosion of environmental protections. The issue has been marked by the loss or simply lack of trust, misinformation, wildly divergent opinions as to facts, lack of data, and polarization among stakeholders. Considering these and other factors, BPRD has several options at this point, including forgoing the project of a crossing in this reach of the river.

Should BPRD and stakeholders decide to proceed with a collaborative process, this report contains a number of recommendations intended to help shape that process, including a stepwise approach that would test at each step whether there is adequate commitment to support a full collaborative process. This stepwise approach would include small private facilitated conversations to rebuild trust, the engagement of a neutral convenor, a joint fact-finding process, and then, only if indicated, the initiation of a community collaborative with a number of elements that would help it be successful.

We also recommend that such a process address more than simply a crossing. It should include broader concerns that were evident in the interviews: the tension between equitable recreational access and environmental protection in a growing area. We also recommend that participants include those who are traditionally underserved with recreational opportunities, residents who live in different parts of the community, and those who live near any possible proposed crossing.

The collaborative group will need enough time to address the differences as to fact and to rebuild relationships and trust, and then generate, evaluate, and choose among alternatives. We estimate this will take at least one year.

We believe that, should BPRD and stakeholders decided to initiate a collaborative process, especially if in alignment with the recommendations herein, they could ensure that the community would benefit. It could offer a way forward for all stakeholders with increased recreational access, environmental protection, and social equity, as well as increase trust and enhanced relationships.

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Introduction

BACKGROUND ON THE ISSUE

Bend Park and Recreation District (BPRD or District) is a special tax district, separate from the City of Bend, that is governed by a five-member elected Board of Directors and managed by an Executive Director. BPRD maintains and operates about 3,000 acres of parkland (including 70 miles of trail), offers recreation programs, and manages several facilities.

BPRD’s Bond Measure 9-86, approved by voters in 2012,1 included, among several other projects, “pedestrian crossings connecting the east and west sides of the River Trail.” The BPRD does not own land that could be used for such a crossing. The BPRD convened a Citizens Advisory Committee (CAC) in 2015; staff presented several options for a trail alignment and bridge location and the CAC agreed on one that is just outside the Bend Urban Growth Boundary (UGB) on Forest Service land.

All bridge locations studied—some on private land, some on public land—were in a reach of the river that has special designations under the federal Wild and Scenic Rivers Act and the Oregon Scenic Waterways Act, or solely under the Scenic Waterways Act.

According to the Oregon Park and Recreation Department, “The Scenic Waterways Act was created to strike a balance between protecting the natural resources, scenic value, and recreational uses of Oregon's rivers by designating them.”2 Additionally, “…the Oregon Legislative Assembly designated [as a State Scenic Waterway] portions of the river from the [Wickiup] reservoir to Bend through a bill in 1987. In 1988, Oregon voters approved Measure 7 and added the last, most-downstream mile inside Bend's Urban Growth Boundary.”3

The Wild and Scenic Rivers designation extends from Wickiup Dam up to but not within the Bend UGB. The Upper Deschutes Wild and Scenic River and State Scenic Waterway Comprehensive Management Plan4 (hereinafter “Management Plan”), developed by fifteen federal, tribal, state, and local agencies, notes that the federal Wild and Scenic designation was established due to the “scenic, recreational, cultural, geologic, wilderness, fish and wildlife as well as historic and botanical values” in the area.

The Management Plan also reads (page 42), with regard to the Wild and Scenic reach of the river, “New bridges, transmission, gas or water lines will be discouraged.” With regard to the Scenic Waterways reaches of the river, the Management Plan as well as the Upper Deschutes River Scenic Waterway—Oregon Administrative Rule 736-040-00735 reads, “New bridges will not be permitted.”

BPRD approached the Oregon Parks and Recreation Department (OPRD), which manages the Scenic Waterways Program, and requested an amendment to the rules to allow a footbridge on the Upper Deschutes. In 2016, the Oregon State Parks and Recreation Commission took comments through a

1 See page 5 of the voters’ pamphlet at https://weblink.deschutes.org/public/0/doc/13654/Page1.aspx for the text.

2 See https://www.oregon.gov/oprd/NATRES/scenicwaterways/Pages/index.aspx.

3 See https://www.oregon.gov/oprd/Pages/upper-deschutes-scenic-waterway.aspx.

4 July 1996, https://www.oregon.gov/oprd/docs/deschutes-sww-plan.pdf.

5 See https://www.oregon.gov/oprd/docs/deschutes-rules.pdf.

The Mary Orton Company, LLC 3 | Page public review and declined to amend the rule. Instead, it directed OPRD staff to look at the rules for that reach at a higher level, rather than specifically targeting the one restriction that affects crossings. That review was completed in 2017 and the decision was made to not to pursue any new rule amendments at that time. The OPRD process included, among other outreach efforts, a citizens’ committee named the Upper Deschutes Advisory Group (UDAG).6

By this time, the bridge proposal had become controversial. Bills to ban a bridge were introduced in the 2017 and 2018 legislative sessions. They did not pass.

The BPRD Board of Directors adopted a resolution on February 20, 2018 (see Attachment A) that directs the District to enlist the help of a third-party facilitator to help stakeholders resolve how to best connect the Deschutes River Trail on the south end of Bend. Later that year, BPRD retained Oregon Consensus to assist them to find and contract with such a facilitator. Oregon Consensus suggested, and BPRD agreed, to first perform an assessment to ascertain whether initiating a collaborative process would be advisable. This report is the result of that assessment.

OREGON CONSENSUS

Oregon Consensus (OC) is Oregon’s legislatively established program for public policy consensus building and conflict resolution, providing assessment, facilitation, mediation, and other services to communities, public entities, and stakeholders on complex public policy issues.

OC issued a Request for Proposals to its Affiliated Practitioner Team for this conflict assessment.

After reviewing proposals and consulting with a few stakeholders, including BPRD, OC selected The Mary Orton Company, LLC to perform the assessment.

ROLE OF THE MARY ORTON COMPANY

The Mary Orton Company, LLC (TMOC) is a Bend, Oregon firm that has provided conflict prevention and management services, primarily for environmental and public policy issues and conflicts, throughout the country for 20 years. TMOC also provides facilitation, public involvement, and organization development services.

TMOC worked on behalf of OC to conduct a neutral assessment to advise whether and how a collaborative agreement-seeking process might help address ongoing concerns about the alignment and construction of a trail segment to connect the Deschutes River Trail on the south end of Bend.

The role of TMOC and OC in this assessment is to provide a thorough, accurate, and impartial analysis of the situation, in order to assist stakeholders to increase their mutual understanding of the interests and concerns of others and to help BPRD and stakeholders to decide whether to embark on a collaborative process.

Neither TMOC nor OC is an advocate for any particular outcome or interest except good process, and we conduct our work in a fair, deliberate, and impartial fashion. TMOC and OC staffs are bound by the code of ethics of the Association of Conflict Resolution that reads, in part, “Impartiality means freedom from favoritism, bias, or prejudice.” To that end, without endorsing any interviewee’s

6 See https://www.oregon.gov/oprd/Pages/upper-deschutes-scenic-waterway.aspx.

The Mary Orton Company, LLC 4 | Page opinions, we have strived to include a summary of all points of view expressed by interviewees in this report.

We hope this report is useful to both BPRD and stakeholders as they decide on their next steps with regard to this issue. Of course, the recommendations in this report are advisory only; the parties will decide whether to move forward with a collaborative process after taking into account the data and recommendations in this report and other information as they choose.

METHODOLOGY

This assessment is based upon data collected through voluntary interviews of stakeholders. Mary Orton conducted 25 face-to-face interviews of 29 people from September 9 through October 9, 2018. Mary developed the interview questions (see Attachment B) in consultation with OC and BPRD.

Mary requested and received from BPRD a list of 19 potential interviewees, 17 of whom agreed to be interviewed. Two of those invited another person from their organizations to attend their interviews.

Mary asked all interviewees to suggest others who should be interviewed. Based on those recommendations, Mary contacted 14 additional potential interviewees, 10 of whom agreed to be interviewed. Three of these were interviewed at one time.

The interviews and report structure were designed to encourage frank and open answers to interview questions. Interviewees were told that a report would be written, that their names would be listed as interviewees, and that a summary of their comments would be included in the report.

They were also told that their comments would not be attributed to them or their organization. In addition, interviewees were invited to designate any part of their interview as private, in which case it would not be used in the report or shared outside TMOC.

TMOC encouraged feedback on the report. Interviewees were sent a draft version of the report (one that did not include the executive summary or recommendations) and were invited to alert Mary if something important they said was inadvertently not included in the report.

TMOC thanks the interviewees who took the time to share their thoughts, opinions, hopes, and concerns. A list of those invited to be interviewed is in Attachment C.

REPORT ORGANIZATION

An Executive Summary precedes this Introduction.

The report continues with Interviewees’ Comments, a detailed summary of comments made by interviewees. Readers should note that not every comment made is included here; it is intended to be a summary of the main themes we heard during the interviews. The first subsection here contains interviewees’ concerns and interests, organized by issue area. The next section lists barriers to addressing those concerns and interests. After barriers is a section on possible common ground and a section on possible solutions suggested by interviewees. A reference to process ideas from interviewees completes this section.

The final section of the report contains the recommendations from TMOC for the BPRD and others to consider as they determine next steps and is aptly named Recommendations.

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Attachments include the BPRD Board of Directors resolution on the subject (referenced above), interview questions, the list of interviewees and interviewees’ process ideas for a possible collaboration.

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Interviewees’ Comments

This section describes, without attribution, the comments and opinions of the interviewees. It is intended to include the full range of opinions shared by interviewees, without indicating how many made one comment or another. The terms “interviewees” and “some interviewees” should be viewed as interchangeable. These terms are not intended to mean all interviewees and could mean one interviewee.

Statements from interviewees are treated as opinions for the purposes of this report, and, because this is not a fact-finding report, they were not checked for accuracy.

Mary Orton, TMOC, and OC neither endorse nor necessarily agree with the following comments and opinions; they are included here because one or more interviewees said them.

CONCERNS AND INTERESTS

This section describes the concerns and interests of the interviewees, and is organized by issue.

Laws and Regulations Many interviewees cited the federal Wild and Scenic Rivers Act and State Scenic Waterways Act designations when discussing their desires vis-à-vis this reach of the river, whether they were in favor of or against a crossing.

Some interviewees, including some who preferred to have a connection across the river, cited their fear of losing protections on federal and other public lands. They felt that if a bridge were allowed despite the language in the rules, it could set a strong and negative precedent that would weaken the integrity of the Scenic Waterways Act and perhaps also the Wild and Scenic Rivers Act.

Others said with the large number of private homes built on the river, as well as the high level of recreation by people and dogs in the area, this reach of the Deschutes should no longer qualify as a protected area, and so the designations or the rules should be reconsidered. Some said a bridge would not detract from a Wild and Scenic or Scenic Waterways reach, especially when private development has occurred up to the shoreline in those reaches. They also said that there are many examples of Wild and Scenic and Scenic Waterways rivers that have bridges, including the Upper Deschutes, and that a bridge would enhance the corridor because it would allow people to access the river.

Some interviewees said the Wild and Scenic and Scenic Waterways laws and regulations were so restrictive that pursuing a bridge had no legal basis, and would open the BPRD to lawsuits if they continued.

Other laws and regulations were also cited. Interviewees noted that the Deschutes County Transportation System Plan has language supportive of a bike/pedestrian bridge along the

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Deschutes River, provided there is adequate outreach to affected property owners.7 Others noted the private property rights of residents near any proposed bridge site would have to be respected.

Wildlife Some interviewees mentioned the potential negative impact on wildlife of a bridge, and resultant increased use by people, dogs, and bicycles, as a reason not to build a bridge. While acknowledging that this is not a pristine river corridor, some said that it is still critical for wildlife, and that impacts to wildlife from a bridge would extend beyond the bridge location, affecting nesting areas as well as migration corridors.

Some cited the Oregon Department of Fish and Wildlife 2015 letter to the Oregon Park and Recreation Department regarding a bridge that said, “Much of the area on the west side of the River between River Miles 174.6 and 172 is part of a U.S. Forest Service Key Elk Management Area as described in the Deschutes National Forest Land and Resource Management Plan (1990). In addition, according to the Deschutes County Comprehensive plan, the west side of the river is part of the Statewide Goal 5 Tumalo Deer Winter Range.”

Some noted that the privately-owned “Thompson Wildlife Sanctuary” was an undeveloped area on the east side of the river that provides a significant habitat for several riparian species, as well as serving as a mule deer crossing point. They were concerned that a bridge at the District’s preferred location and a trail leading to that bridge would irreparably harm the wildlife and the Sanctuary.

Some said they had seen elk in the area in recent years, and others said the elk would return if the dog park were removed and no bridge were built. Others stated that the elk were no longer in the area and that a bridge would not have a negative impact on wildlife. They noted that the area is mostly developed, with subdivisions already built in what used to be elk wintering habitat and a new subdivision being built in the area, and they doubted that a bridge would have a significant impact above and beyond these developments.

Still others said there is no recent study of the current usage level of the area by wildlife, and without those data, no decision should be made about a crossing in the area. Some said if studies showed wildlife were no longer using the area due to current recreational use and housing development, then the area could be considered a “sacrifice area” and increased recreation should be allowed.

While some interviewees opposed to a bridge due to wildlife concerns suggested that a set of eastside trails would address the needs of those residents, others said eastside trails could also have a negative impact on wildlife.

Access, Connectivity, and Increased Use Interviewees of different opinions about a crossing said they believed that more recreational use of any area would encourage more environmental stewardship of the area.

7 See Policy 15.3(m), 15.9, and 15.10 at https://weblink.deschutes.org/public/DocView.aspx?id=6061&page=12&searchid=bf0cd6e9-f1a3-4d44-b7a4-d39f2f9f2ec1.

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Some interviewees said as Bend grows, more access and more trails would need to be built; other interviewees said as Bend grows, the special places would need more protections. Some interviewees said they wanted to find a balance between conservation and recreation. Some found that balance with a bridge, some without a bridge, and some said while they didn’t know where that balance was best found, the cost of access needed to be weighed against the benefits.

Interviewees said additional connections and trails were needed to prevent over-use of existing trails, especially trails along the river. “People are hungry for places to walk along the river,” one interviewee said.

Some said a bridge makes good sense from an environmental point of view, instead of requiring people to drive several miles to connect. They noted the potential to reduce car trips, carbon emissions, congestion, and vehicle-miles traveled, helping to achieve the goal of decreased reliance on vehicles and reduction of air pollution. Others thought that increasing trails throughout the city would be a better way to decrease vehicle-miles traveled.

Some interviewees felt a crossing in this reach was fulfillment of a promise of the bond measure they supported and the goal of a continuous trail connection between Tumalo and Sunriver. Others pointed out the projections of significant growth in the southeast part of the City, and viewed a crossing in this area as a way to address the demand for westside recreation by moving people from the east to the west side. They also said a crossing in this area would allow eastside children too young to drive to enjoy the Deschutes National Forest on their bikes.

By contrast, some interviewees said they were concerned about “opening the floodgates of people” coming into the area. At the same time, some opponents said any bridge in that area would only be used by a limited number of people in the River Rim development. (BPRD has not indicated how many additional recreationists are predicted to use the area if a crossing were there, a source of frustration for some interviewees.)

Some interviewees said they consider this a wild section of river, and others noted the list of “outstandingly remarkable values” that warranted designation as Wild and Scenic as reasons to not build a bridge. While they acknowledged houses and dogs already impact the area, they said impact from a bridge would exacerbate the situation. Others noted that the visual impact of the bridge alone would negatively impact others’ enjoyment of that reach of the river, and trash and other impacts from the increased numbers of visitors would be detrimental. Others said there could be unintended consequences of a bridge, including increased river use by inexperienced floaters unprepared for the dangerous rapids below.

Off-Leash Dogs Supporters and opponents of a crossing noted that the riparian area, especially on the west side in the Rimrock area (also known as Good Dog, and which is a year-round off-leash area with access to the river), has already been heavily impacted by people and dogs, and that the increased turbidity of the water can negatively affect fish and other riparian wildlife. (Whether that impact and turbidity is attributable to dog and dog-owner use is disputed—see “Differences as to Fact,” below.) They opined that this area has not been well managed by the Forest Service and that increased use could mean further degradation if there were no change in management strategy. Some who value the off-leash river access were concerned that more users would mean their year-round off-leash access would

The Mary Orton Company, LLC 9 | Page be restricted or eliminated. They point out that Rimrock is one of only two places in or near Bend where people can legally take off-leash dogs to swim in the river in the summer (when many trails don’t allow off-leash dogs and when access to water is important to many dog owners) and is the only such place that also allows for hiking.

Local vs. State/National Decision Interviewees said because the Wild and Scenic designation is federal, and the Scenic Waterways designation was established (in part) with a statewide vote, local stakeholders should not be the only ones to weigh in on a crossing. Others felt strongly that local stakeholders should be the primary decision-makers.

Still others believe that the community as a whole wants to have a crossing, and that desire should outweigh the opposition of nearby property owners. Others remarked that the community doesn’t have those kinds of conversations very well.

Neighborhood Impact Some interviewees were concerned about the impact of a crossing on their neighborhoods, including increased traffic, crime, potential for fire, trespassing on private property, where people will park, and undesirable people who might be attracted by a trailhead or crossing. Some were concerned about conflict between trailhead users and residents. Others responded to these concerns by noting that “we all have to share” the beautiful parts of the city.

Some interviewees said it would be a “travesty” to ruin such a beautiful stretch of river with a bridge, while others pointed out that there were already many private property owners with homes built near the river and with private access to these areas. Interviewees said local people who have a trail or an area to themselves wouldn’t like additional people, but it would be a good trade-off for getting more people active and outside. Some characterized opposition and support of a crossing as: those near the river don’t want it, and those further away support it.

Social Equity and Environmental Justice Some interviewees brought up environmental justice and social equity issues, with the lower-income (east) side of the river having less access to the river and to Deschutes National Forest trails. They noted that eastside trails off the river would not equate to the experience of the Deschutes National Forest river trails. This is in contrast to others who said a trail system on the east side could provide the same values.

Interviewees said there were 30-40,000 people on the east side without easy access to trails west of Bend, despite living quite close to them. Almost all the trail networks are on the west side, but more than 50% of the population lives east of the river. Interviewees also said the area immediately south of the City has no parks; if a crossing existed, the Forest Service land could serve as their park.

BARRIERS AND COMPLICATING FACTORS

This section details the complicating factors or barriers to addressing the concerns identified by stakeholders.

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Trust Many events and occurrences have increased distrust among both opponents and proponents of a river crossing. Many interviewees expressed dismay at the erosion of trust and wished it could be rebuilt.

Public Processes Interviewees said there had been several public processes that have resulted in a recommendation of no bridge (this is in dispute—see “Differences as to Fact,” below). However, because in their view the District has not accepted those outcomes, they could not be trusted to accept another process that didn’t recommend a bridge.

Also, because the District has indicated that they could wait one year and build a bridge under the Scenic Waterways rules (this is in dispute—see “Differences as to Fact,” below), some interviewees felt that meant that they could not trust that the results of a collaborative process would be followed.

Some interviewees said that the CAC process was flawed because members were not told of the restrictions on bridges from the two overlays (federal Wild and Scenic and state Scenic Waterways).

Some interviewees said the UDAG process, run by OPRD, was supposed to only address whether the Upper Deschutes Scenic Waterway rules should be reopened. They say that despite the fact that the participants were told that they were not to discuss the bridge, they did end up discussing the bridge, which some saw as unfair. Also, while some say that this process recommended against a bridge (this is in dispute—see “Differences as to Fact,” below), others said it was not a representative or well-run process.

District Management Some interviewees strongly distrust BPRD management. For them, the lack of trust is so strong that virtually every action of the Director is seen as malicious or at least ill-intentioned.

Wildlife Some interviewees said they do not believe there is enough data to know whether a bridge in the area would be detrimental to wildlife; yet, in their perspective, BPRD personnel indicate that they know it would not be detrimental. They said this increased their distrust of BPRD and the District should not be so quick to opine about a subject on which they are not expert.

Resources Some interviewees said they distrusted BPRD because they usually seem to have enough funds to do what they want. Similar distrust was cited toward some of the landowners near the bridge area because they were viewed as spending their funds on spreading misinformation and fear.

Legislative Efforts Some interviewees saw the two legislative efforts as trying to prevent a collaborative process and public input, which increased their distrust of the bridge opponents. Other interviewees considered the two legislative efforts as valid public processes. Also, interviewees mentioned that the first legislative effort was launched during the UDAG process, which was trying to find common ground, and they felt blindsided at a time when “they were supposed to be open and honest with each other.”

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Alternatives Some interviewees indicated they didn’t trust other stakeholders who proposed an eastside trail that would be the “equivalent” of the Deschutes National Forest trails. They said eastside trails would be a totally different experience: lava rock instead of ponderosa pines and away from the river instead of on the river. They said if the connection to Sunriver were past Lava Butte, there is less accessibility to the Deschutes National Forest and many would not be interested in that trail.

Eminent Domain Several interviewees told the story of hearing second- or third-hand that a BPRD staff member threatened a landowner with eminent domain (condemnation), before BPRD decided the preferable site for a bridge was on public land. Others told of hearing first-hand a former BPRD staff member say that condemnation was a possibility or that BPRD was “prepared” to take land through that process. Still others told of an email that said BPRD would have “no problem using condemnation.”

Interviewees also said Don Horton, BPRD Executive Director, has said publicly that BPRD would never say that.

Elected and Appointed Officials Interviewees said they knew of political candidates who were offered significant sums in campaign contributions for opposing the bridge, or of significant contributions given to other candidates because they supported the bridge. Others said there should be a change in the leadership of the BPRD if the bridge idea continued to be pushed. Still others said the BPRD Board tends to uncritically do what their Executive Director suggests, which decreased their trust of the Board.

Claiming Support Some interviewees said their trust of BPRD eroded when the District claimed publicly that the interviewees’ organizations supported the bridge. While they had supported the bond issue that included “pedestrian crossings connecting the east and west sides of the River Trail,” they didn’t understand at the time the full implications or the restrictions against a bridge in state and federal law. Some felt that the District should have been more forthcoming about those restrictions when they were first approached to support the bond election, and others said that BPRD should have checked with them before using their organization’s name later in support of a bridge when they had more generally supported the bond issue.

Impacts Interviewees said opponents’ reasons for opposing the bridge were not honest because there was so much development and use in the area already that the bridge would not have a negative impact, even to wildlife. In addition, District funding could help mitigate even current impact from overuse in the Rimrock area.

Bridge Location Interviewees said BPRD announced at a legislative hearing that the bridge location had been moved from private property to Forest Service land, and they felt BPRD had been disingenuous because they hadn’t disclosed that change before the hearing. Others said the CAC had chosen the Forest Service site in 2015 as the preferred location, and the Board adopted that location during the discussion of the first legislative bill.

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Differences as to Fact In addition to the differences of opinion described above, there were multiple instances of disagreements about facts that might be clarified by a mutual exploration of the issues, learning, or fact-finding.

Level of Development Some interviewees said the area in question is quite developed with houses and recreational trails, while others said the area is not all developed.

Previous Processes Some interviewees said, “State Parks has said ‘no’ twice to a bridge,” while others said that never happened—that instead OPRD declined to open the rules to amendment. Some said the UDAG process resulted in consensus against a bridge, while others say there was no consensus on the bridge. While some said the UDAG process was designed only to ask how well the Scenic Waterways designation was working to protect the values for which it was made, others said it was about whether to build a bridge, and still others say its purpose was to come to consensus on a trail alignment.

Wild and Scenic Regulations Some interviewees said there was “no mitigation allowed under the Wild and Scenic Rivers Act,” while other pointed out that the Wild and Scenic part of the Management Plan not only doesn’t prohibit a bridge, but it seems to encourage mitigation: “New bridges, transmission, gas or water lines will be discouraged. Where no reasonable alternative exists, adverse effects to scenic quality will be minimized by using existing rights-of-way and structures or burying lines (page 42).”

State Scenic Waterways Restrictions Some interviewees said the Scenic Waterways regulations prohibit a bridge, and so there can be no bridge. Others said to allow a bridge would require a change in state law or regulations. Still others said no change would be needed, as there is a provision in the Scenic Waterways Act that allows a property owner to propose a change that is counter to the rules, be denied, and then after a period of a year (designed to allow the state to work with the property owner), the property owner can do as she pleases on her property. Still others said this latter provision applies only to persons, not to districts or other non-individual landowners. Still others said if that provision applies only to persons, the entire Act would probably apply only to persons.

While some characterized utilizing the one-year waiting period as failing to adhere to the rules, others pointed out that this provision was actually a part of the Act, and so abiding by this provision would not be acting counter to the rules or the Act.

Wildlife Presence As noted above, some interviewees who have lived or recreated in the area for years disputed assertions by others (also including some who have lived or recreated in the area for years) that there is a significant amount of wildlife still in the area.

Conservation Easement Some interviewees stated that the privately-owned Wildlife Sanctuary that is posted in the area is protected by a conservation easement (with some saying it was not adequate to truly protect the area). Others said there is no conservation easement, but county zoning protects it.

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Impacts at Rimrock Some interviewees said there were significant negative environmental impacts from dogs and people at the Rimrock area. Others said there was some impact on small section of bank because users are concentrated, but the dog impact is less than that from humans; and that fluctuating river flows cause more streambank erosion than dogs.

Lack of Data Some interviewees emphasized the importance of doing a serious assessment of the wildlife utilization in the area, because there is no good recent assessment. Others emphasized that community data, such as the level of support of such a crossing, is also lacking.

Polarization Interviewees noted that many people involved with this issue are “dug in” and have polarized views.

Some named as a barrier certain individuals, on all sides of the issue, who were viewed as holding their views so strongly that they would be an impediment to any community solution that didn’t closely align with their own views. Both opponents and proponents of a bridge expressed the view that the other side’s positions were “narrow and self-centered.”

Capacity of Stakeholders Some interviewees said BPRD has the capacity to address many issues at once, but the individuals and organizations that might be expected to participate in a collaborative process have less. They were concerned this might make it difficult to have real engagement, especially for a process that lasted as long as a year.

Laws and Regulations Some interviewees listed the Wild and Scenic and Scenic Waterways designations as a barrier to addressing their concerns. They said finding an option to connect the River Trail that complies with the Management Plan and state rules, or a legislative change that would allow a bridge, would be difficult. Others said they viewed the fact that the state cannot enforce the Scenic Waterways rules as a barrier to addressing their concerns.

BPRD’s Experience with Restoration Interviewees said the BPRD is not greatly skilled or experienced at addressing wildlife, habitat, and riparian restoration concerns. They noted that BPRD had just started with its own restoration projects (in conjunction with the Upper Deschutes Watershed Council [UDWC]) and so were unproven. Others said BPRD has experience in this area, and has restored more riverfront within the UGB than any other agency. They pointed out that BPRD has partnered with UDWC on riparian restoration since 2003.

POSSIBLE COMMON GROUND FROM INTERVIEWEES

When asked whether they felt there was common ground among all stakeholders, interviewees had some ideas, as listed below. (Some interviewees said their own views were potential common ground, but those are not listed here when others expressed strongly-held and opposite views.)

§ Access, exposure, and the opportunity for people to be outside is important, at least in part so they continue to invest in those places and steward them.

§ We want to protect the values that brought people here: the outdoors, wildlife, views, landscapes, and quality of life.

§ The river is a special part of our community and we need to protect its health.

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§ The issue of managing recreation on public land while protecting that land is difficult, especially for a community that celebrates outdoor recreation, and is growing, like Bend.

§ Trails along the river are special and provide a different experience from trails not along the river.

§ It’s a fine idea to have a trail that connects from Tumalo to Sunriver.

§ We should examine alternative solutions.

POSSIBLE ALTERNATIVES FROM INTERVIEWEES

While interviewees were not asked for specific alternatives or solutions, some were offered. Some possible alternatives had to do with development of eastside trails.

§ While some interviewees talked about the equity of connecting eastside residents with the

Deschutes National Forest trails, others talked about the equity of building more trails on the east side.

§ Interviewees said there is a “beautiful” eastside trail that connects Deschutes River Woods to Benham Falls Bridge through Lava Lands, and back through the Haul Road.

o Others said this trail doesn’t exist on the east side unless you walk on the railroad tracks.

They also said while a trail on the east side could be built, it would be away from the river unless easements were obtained from the many homeowners on the east side whose property runs to the river’s edge.

o Interviewees also said a trail away from the river is not the same as, and is far less desirable than, access to the river trail.

o Others said to build a trail through the lava would disrupt habitat.

Interviewees also had the following suggestions:

§ There is a potential route for a trail starting on the west side, out to the new Visitor's Center, than south, crossing on Benham Falls existing bridge, then connecting via Lava Lands.

§ No bridge is needed because trail connectivity already exists: people can cross the Bill Healy

Bridge and travel along the Haul Road Trail, which leads to the Deschutes National Forest and ultimately to Sunriver.

o Others said this was not a river trail and put trail users along a highway instead of in nature, which is much less desirable.

§ Figure out if better management, sharing among different users (bikes, dogs, pedestrians), seasonality and hours restrictions, and restoration along the stream bank, especially at Rimrock, would help bring the elk back and meet the values that people have for the area, even with a bridge.

§ BPRD could allocate funding for protection and restoration of the area impacted by any bridge, including Rimrock.

§ A crossing might be acceptable where the canyon is so steep there are no homes there.

Engineering would be difficult and the cost of a bridge there would be expensive, and there would still be issues with private lands.

§ Move the bridge site inside the UGB, away from the Scenic Waterways reach, further downstream.

§ Move the bridge site to Meadow Camp, on private property.

§ Move the bridge site to Lava Island.

§ Reduce the state Scenic Waterways reach to allow for the bridge, in order to make the rest of it rock solid. If it were reduced by half, that would be a big concession; if it were reduced by a quarter mile, it would not be such a big deal. (Note: this idea came from a bridge opponent.)

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§ Buy the right to build a trail at the existing pedestrian bridge downstream.

INTERVIEWEES’ PERSPECTIVES ON A COLLABORATIVE PROCESS

Most interviewees were willing to consider and participate in a collaborative process on this issue.

For some, it was a way to potentially find a creative solution for trail connectivity that everyone could agree to. For others, it would at least offer a path to increase mutual understanding and rebuild trust, even if a consensus did not emerge.

Interviewees offered many suggestions for what ground rules or approaches might be useful or not useful, and also had suggestions for who should be involved in any such process. Many of these suggestions have been incorporated in our recommendations. Please see Attachment D for interviewees’ ideas.

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Recommendations

This section contains our recommendations to address the central question of the assessment:

whether and how a collaborative agreement-seeking process might help address ongoing concerns about the alignment and construction of a trail segment to connect the Deschutes River Trail on the south end of Bend.

Introduction There is common ground among all interviewees: they all cherish the river, and they want to protect the river from environmental degradation. Many of those without easy access want to more fully experience the river in this reach, and those with access, particularly private access, are concerned that more users will denigrate their own experience, the ecosystem, or both. Recreational experiences along or near the river are clearly valued more highly than those away from the river.

Whether or not to build a bicycle and pedestrian bridge near the southern UGB of Bend—the narrow question that has embroiled many of the interviewees to date—is a manifestation of a broader issue facing the community: the tension between equitable recreational access and environmental protection in a growing area, especially with an overlay of private property rights. It is difficult to have a productive conversation solely about a particular bridge or river crossing in that context. To address this issue properly, the community would need to engage in a broader conversation: How do we want to manage this area that is valued by so many for so many different reasons?

Whether or not to engage in such a community conversation is discussed below.

Collaborative Opportunity Almost all the interviewees were in favor of a collaborative process as a way to have a civil conversation about these issues. Even some who were pessimistic about the possibility of achieving agreement saw value in a process that might rebuild trust and relationships.

There is no guarantee that a collaborative process would result in consensus or even broad agreement on the question at hand. Many stakeholders have strong and polarized views and mutual levels of distrust are quite high. The challenges would be many should a collaborative process ensue. BPRD has several options at this point, including forgoing the project of building a connection for the Deschutes River Trail in this reach of the river.

That being said, we believe that a collaborative process, deliberately designed with certain elements described below, holds the potential of being of value to the District and the community, both to provide an opportunity for rebuilding trust and to explore whether agreement could be reached.

Should the District and stakeholders decide to explore this possibility, we recommend a stepwise approach with an evaluation at the conclusion of each step to determine whether it makes sense to proceed to the next.

Step 1: Trust-Building Conversations The trust issues raised in this report need to be directly addressed both in advance of and throughout any process, and indeed, should be addressed even if there is no process. Many

The Mary Orton Company, LLC 17 | Page interviewees expressed distress at finding themselves at odds with other stakeholders on this issue and said they would like to repair those relationships.

As a first step, stakeholders would be invited to participate in one-on-one or very small group conversations with each other to begin the process of rebuilding trust. These voluntary conversations could be facilitated or mediated by a professional trained in helping people have difficult conversations.

Depending on the tone and outcome of these conversations, the process might proceed to the next step.

Step 2: Neutral Convenor Due to high levels of distrust discussed above, we recommend that a neutral outside convenor or leader be engaged for the remaining steps, to prevent any impression that BPRD is attempting to control the process or the outcome. This should be a person or persons with credibility who is highly respected by stakeholders of all points of view. Perhaps a former elected official or another community leader, or a pair or small group of such individuals, could be found to fill the role. An alternative might be to form a diverse group of involved stakeholders who could collectively serve as convenor.

It would be helpful if a convenor were engaged at this point to assist with the subsequent steps. The convenor’s role might include, among other tasks, potentially forming a small group of stakeholders to serve as an executive committee for the process, retaining a facilitator, working with the facilitator (and executive committee, if one is formed) to develop process design options, issuing invitations to those who would participate in the process, and chairing meetings as appropriate. (Note that this convenor role is separate from the idea of retaining a facilitator to help with process design and implementation.)

In our view, BPRD would serve both as a participant in any ensuing process (with a Board member potentially serving in that role), and as a resource to any group that is formed (at the staff level).

It is possible that the convenor for the Joint Fact-Finding step might be different from the convenor for the Community Collaboration step.

Step 3: Joint Fact-Finding The large number of “disagreements as to fact” in this report speaks to the need to address and attempt to resolve those disagreements—or at least find a way to amicably agree to disagree on interpretation of facts. Here we are recommending this as a stand-alone preliminary step. There would likely be additional joint learning that takes place as part of the educational phase if a full-fledged collaborative process moves forward from here.

Joint fact-finding typically involves all sides of a conflict working together with experts to address factual disputes. Key elements are that § Experts, decision makers, and key stakeholders from all sides of an issue work together.

§ Information and resources are shared.

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§ The result is a single text embodying the sum…