A proposed quarry operation along the Applegate River could test the legal limits of Measure 49 in Jackson County.

A proposed quarry operation along the Applegate River could test the legal limits of Measure 49 in Jackson County.

The Oregon Department of Land Conservation and Development approved a Measure 37 claim Monday for the Krouse Ranch despite objections from neighbors.

Measure 49, which becomes law Dec. 6, doesn't allow a mining operation in a prime agricultural area.

But if the owner of the property, Phil Krouse, and the quarry operator, Copeland Sand and Gravel, can prove they have made a substantial effort to follow through with the mining operation, the restrictions in Measure 49 might not apply.

"We do have a major investment and we will examine the options in that regard," said Bill Peterson, director of administration for Copeland.

Peterson welcomed the state's decision to approve the Measure 37 claim on the property.

Measure 49 has been billed as the "fix" for Measure 37, the property rights law passed in 2004 that provided a mechanism to waive land-use laws that have resulted in a loss in land value.

In Jackson County, about 600 claims totaling 60,000 acres have been filed under Measure 37.

Under Measure 49, the claimants need to prove they are "vested" in a particular land-use project under Oregon law, a process that is usually determined on a case-by-case basis.

"We have to address the vested issue soon," said Medford lawyer Dan O'Connor, representing the Krouse Ranch. "We believe we're vested."

O'Connor said a substantial amount of money has been spent on engineering, hydrology, transportation studies and site work at the Krouse Ranch.

However, the ranch is still awaiting a decision on floodplain and transportation permits from Jackson County Hearings Officer Donald Rubenstein. Approval also is needed from the Oregon Department of Geology and Mineral Industries.

O'Connor said the Measure 37 waiver would be one of the easiest avenues available to proceed with the mining operation, but he said other potentially more complicated options are available, such as seeking a comprehensive plan amendment.

He and other attorneys throughout the state are poring over the language in Measure 49, which he admits is difficult even for his legal mind to wrap around.

"Measure 49 is 26 pages of complications," he said. "It's like torture reading it."

The issue of vesting will be particularly important for those with approved Measure 37 claims, which likely will lead to court challenges.

"There is going to be a ton of litigation," said O'Connor.

Ed Sullivan, a Portland land-use lawyer for 38 years and legal counselor for former Gov. Bob Strauss, said the Krouse Ranch will have to prove that the land is physically committed to the use intended.

He said building a road or hiring engineers and hydrologists won't satisfy the vesting requirements.

"All that preliminary stuff may not be good enough," said Sullivan, a Portland State University professor who is not involved in the case.

Sullivan predicts that landowners who received Measure 37 waivers after June will have an uphill battle because that's when the legislation for Measure 49 was presented to the voters. He said prior knowledge of potential legislation will weigh in on the question of vesting.

He said 300 cases are going to be fought in the courts as those with Measure 37 claims fight to keep their previous rights.

"It's going to be the big issue for the next six months," he said.

Steve Rouse, a member of Save Our Applegate Valley Environment, said wineries and other neighbors near the Krouse Ranch were disappointed with the Measure 37 waiver approval, but see victory in the passage of Measure 49.

"Based on 49, it makes their waiver invalid," Rouse said.

Rouse and others challenged the Krouse Measure 37 claim on the grounds that the property would be more valuable as a vineyard than for extracting rock.

Rouse said he believes the fight will continue over the mining operation.

"Copeland Sand and Gravel isn't letting go of it yet," he said.

Reach reporter Damian Mann at 776-4476 or dmann@mailtribune.com.