Mirror Pond Dam initiative challenged

April 2, 2014
Mirror Pond Dam initiative challenged

Bend park district lawyer says ballot title has grammatical errors

By Hillary Borrud

Two proposed ballot initiatives could complicate Bend officials’ plan to take over Mirror Pond Dam, although a dispute over grammar has already delayed one of the efforts.

A lawyer for the Bend Park & Recreation District has challenged the ballot title of an initiative that would require the district to build fish passage at the dam on the Deschutes River and meet other requirements as part of any Mirror Pond project.

Attorney Neil Bryant said Tuesday he is challenging the ballot title because only voters are allowed to do so, not government entities.

Bend resident Foster Fell filed the original language for the ballot title. He said on Tuesday that his intent is to restore the health of this section of the Deschutes River. “But I don’t anticipate that Neil Bryant is going to allow that thing to fly in a timely fashion,” Fell said on Tuesday evening. Fell said he hopes to get the initiative on the Nov. 5 ballot and to do so he must collect roughly 8,000 valid signatures by August.

Bryant said he is not trying to delay Fell’s plan to gather signatures, and Bryant expects to resolve the issue out of court or receive a hearing on the issue within 30 days.

Bryant said Fell already does not have much time to gather signatures to qualify the initiative for the November ballot.

“Unless he has a lot of money, or has a ton of volunteers, that’s a very steep hurdle to overcome,” Bryant said.

Meanwhile, Fell plans to begin gathering signatures this week for a nearly identical ballot initiative that would force the city of Bend to build fish passage and habitat before spending any city funds on projects along the section of the Deschutes River “now occupied by Mirror Pond.” The initiative also calls for the city to maintain recreational access to the body of water. No one challenged the city ballot title.

Bend officials are working on a plan for the future of Mirror Pond, where sediment has been building up behind the dam and creating mud flats. They are negotiating to acquire the dam from PacifiCorp, the utility that owns it. Bryant said he does not intend to charge the park district for the time he spends challenging the ballot title, but he did discuss problems in the ballot title language with park district Executive Director Don Horton.

Bryant’s challenge focuses on what he alleges are grammatical errors in the ballot title, which was written by Deschutes County District Attorney Patrick Flaherty. In Oregon, a city attorney or district attorney writes a ballot title that impartially summarizes the ballot initiative petition submitted by a citizen. Bryant critiqued Flaherty’s title for a number of alleged violations of grammar rules.

“The ballot title summary is ambiguous because it is poorly written,” according to Bryant’s petition for review of the ballot title, filed in Deschutes County Circuit Court last week. “The first paragraph is grammatically incorrect and, thus, confusing in that the four number parts following the conjunction ‘unless’ each contain complete sentences rather than corresponding conjunctive phrases. The summary should be rewritten to eliminate this ambiguity.”

Bryant also said the caption in the ballot title should include the words “Mirror Pond,” and Fell agreed on this point.

Flaherty said Tuesday that writing a ballot title is “completely outside the DA’s normal bailiwick” of criminal law. He acknowledged the ballot title “could be drafted better,” but said he also needs more information from other people involved in the process.

“It seems the main objection the petitioner (Bryant) has here is they want to make sure that the voter understands that Bend parks and rec could undertake projects, without satisfying any of these conditions, so long as they were not using (park district) funds,” Flaherty said. Flaherty said he believes it will be possible to resolve the ballot initiative challenge outside of court.

Fell said his primary complaint about changes to the language in his ballot initiative petition, both in Flaherty’s ballot title and the language proposed by Bryant, is that they now focus more on potential restrictions on city and park district projects, with fewer of the references to restoring river habitat that Fell originally included. “Everything else is just nitpicking, I guess,” Fell said of changes to the ballot titles.

Fell said he plans to collect many of the signatures for his ballot initiatives on the website www.freetheriver.org, where he will post forms that voters can print, sign and mail to him. The city of Bend provided Fell with the form necessary to do this on Tuesday. In Bend, Fell needs to gather more than 7,000 valid signatures and submit them by Aug. 7 for the initiative to qualify for the November election ballot.

— Reporter: 541-617-7829, hborrud@bendbulletin.com

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