In the appeal of a lawsuit against public participation, the Ninth Circuit Court
has ruled against the plaintiff (Kip O’Connor et al.) in a Dec. 24, 2015,
decision.

In a case that began in 2011 and wound through two appeals to overturn the
courts’ decisions, the defendants (County of Clackamas and the Mount Hood
Corridor Community Planning Organization, including the CPO’s land use chair
Don Mench) have seen the court rule in their favor.

O’Connor, a local developer and owner of Big Mountain Co., claimed in his
original suit that the CPO and individuals intentionally interfered with the
developers’ business relations, as well as violated their constitutional rights to
due process. O’Connor was upset about public comments submitted by the
defendants of the County’s land use permit process. Those comments
highlighted damage to the Sandy River and its sensitive salmon habitat
caused by the partially completed development activities.

In an earlier ruling, the Court threw out the business relations claim under
Oregon’s anti-SLAPP statute, a law specifically designed to protect citizens
who take advantage of public involvement opportunities to provide input into
government decision-making decisions.

SLAPP is an acronym for strategic lawsuit against public participation.
The lawsuit was a contributing factor in the CPO going silent over the course
of the appeals hearings.

Mench affirmed that the legal wrangling was at the root of the CPO’s
temporary demise, but also cited that the economic recession during that time
reduced the number of new land use/permit applications being dealt with by
CPOs.

But there were other organizations that stepped up to fill the void.

“The MHC CPO may have missed some comment opportunities, however other
groups and individuals did not,” Mench wrote in an email to The Mountain
Times. “Oregon Wild, BARK, Sandy River Basin Watershed Council, Oregon
Trout, and NW Steelheaders are a few examples. Local citizens have testified
at state and county land use hearings, and taken a local case all the way
through the Land Use Board of Appeals.”

It is Mench’s understanding that an effort may be made to revive the CPO at a
March 19 Rhododendron CPO meeting.

Daniel Rohlf, an Oregon attorney who defended the CPO, commented that the
Ninth Circuit’s ruling was “pretty short and to-the-point.”

He indicated that unpublished decisions (such as this one) generally means
the case did not raise any novel legal issues or deal with a weighty topic that
society in general might follow.

“Unpublished opinions are thus typically short and curt and simply resolve the
points of dispute between the parties,” Rohlf wrote in an email to The
Mountain Times. “It is one indication that the judges were not very impressed
by the appeal. I think the court of appeals correctly recognized that the
plaintiffs’ allegations against the CPO ... had no merit.”

In the Ninth Circuit Court’s memorandum, which is not for publication
verbatim, it indicated that O’Connor’s challenges failed on the merits.

“While the courts readily recognized that plaintiff’s legal claims were without
merit, simply going through this legal process imposed significant stress and
uncertainty on my clients,” Rohlf wrote. “What I think is even more
unfortunate is that this suit has discouraged people in the Mount Hood
community from expressing their views on land use issues that affect their
community for fear of winding up in court.”

Through it all, Mench noted that he was encouraged by U.S. District Court
Judge Simon’s rulings.

“Now that the U.S. Ninth Circuit Court of Appeals has affirmed those
decisions, my sixth year of retirement starts with celebration,” Mench wrote.

“I thank all of our friends and Mountain locals who have consistently
encouraged my wife Christy and I throughout this case.”

The Mountain Times reached out to Kip O’Connor but he refused to be quoted.