Mark Lathan Excavation, Inc. v. Deschutes County, 250 OrApp 543 (2012)

Holding:   In 1995, County allowed surface mining of a certain property, but neither the “Program to Meet the Goal” (PTMG) nor the assessment of the “Economic, Social, Environmental and Energy” (ESEE) consequences as to the decision expressly addressed mining of a hillside that was part of the property. County was correct in requiring a Post Acknowledgment Plan Amendment before the hillside could be mined.

1)   Ambiguity does not require confusion as to the meaning of a particular word or phrase. Sometimes, fact that the text is silent creates the ambiguity. at p. 555.

2)   Here, the existing ESEE is part of the legislative history, and legislative history may be used “to convince a court that superficially clear language actually is not so plain at all–that is, that there is a kind of latent ambiguity in the statute.” quoting State v. Gaines. at p. 556.

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