February 10, 2002 11:00 pm

By Alice Perry Linker

Observer Staff Writer

The Union County commissioners may need the wisdom of Solomon to solve the land use dilemma they face.

The problem has been around for more than four years, since 1997, when Gene and Patricia Botham first requested permission to build a house on their property on the slopes of Mount Harris above Cove.

The property, 160 acres, is about half a mile from the nearest road and in the middle of the elk winter range.

The county commissioners first voted in December 1997 to grant the Bothams permission to build a house, but they issued a caveat. The house could not be occupied between December and March.

The reason: During winter, elk forage along a narrow band of grassland, above the houses and farms and just below the deep snow. Empty structures dont bother the wild animals, but the activities of people and domestic animals do.

The Bothams, who were selling the property to Dave and Sharon Howell, appealed the countys 1997 decision to the state Land Use Board of Appeals, which sent the decision back to the county for revisions. The county, after making the changes, upheld its original decision.

The Bothams did not appeal a second time, but decided to reapply.

During the four-year discussion, the Oregon Department of Fish and Wildlifes Jim Cadwell has consistently opposed further disruption within winter wildlife range. He has said that with each passing year, the animals winter range shrinks, making survival more difficult.

The Bothams agent, Enterprise lawyer Rahn Hostetter, brought another proposal to the commissioners last week. Asked by the commissioners to reach some agreement with the state fish and wildlife department, Hostetter admitted that agreement is not possible.

Cadwell agreed about the disagreement.

This has been particularly difficult, Cadwell said about the request. Its (the property) a very long way from any road. We have worked really hard.

The bottom line, Cadwell said, is there is no good place on the Botham property for a year-round dwelling no place that would not distress the elk herd during the cold months.

During the meeting, Cadwell showed videos of elk wintering in a draw on the Botham property.

There are about 108 animals elk lying in the draw, he said. They have a break from the wind, some vegetation there, and solitude. This draw is the only place they have to go. They are wintering there now.

Hostetter said the Bothams will agree to build only one outbuilding, create a pond for wildlife, improve the grasses to the type beneficial to elk, and make no complaints to the fish and wildlife agency about elk.

Complaints from farmers closer to the valley floor near Cove have forced the fish and wildlife department to haze elk herds, driving them up the mountainside.

Cadwell said he had investigated the possibility of the Bothams exchanging one property for another in a compromise effort, known as off-site mitigation. There is no precedent for that procedure, but Commissioner Steve McClure said he would like to look at off-site mitigation.

The county faces a quandary because under its own land-use regulations, the commissioners must first consider the resource, in this case, the wild elk herds. The Bothams property, however, is known as a lot of record and under state law may be developed with housing.

Last week, the commissioners listened to the testimony from Hostetter and Cadwell and decided to consider a tentative decision March 7.