February 09, 2003 11:00 pm

The elk and the deer may roam freely during the winter up on Mount Harris without fear of human development.

The Oregon Court of Appeals announced a ruling last Wednesday in favor of a Union County decision to forbid a year-around home in an area where elk spend their winters.

The ruling came after years of petitions and hearings on a request by Gene and Patricia Botham to build a house and outbuildings on a 160-acre property in the elk winter range. The court did not write an opinion on its ruling but upheld the county's decision. Janie Burcart represented the county before the court.

The county commissioners voted earlier to permit the Bothams to build a house lower on the Mount Harris slope and closer to Kerns Loop Road. Dissatisfied with that decision, the Bothams' attorney, Rahn Hostetter of Enterprise, appealed the decision to the state Land Use Board of Appeals. In November the state board ruled in favor of the county and allowed it to place conditions on any house and outbuildings within the big-game winter range.

The Oregon Department of Fish and Wildlife has consistently objected to building houses for year-around occupancy in the middle of winter range. ODFW officials have said on several occasions that the big animals' winter feeding grounds are shrinking as the result of development.

The Court of Appeals upheld the conditions placed upon the Bothams for developing the property:

• Fence landscaping and garden to keep out elk and deer.

• Allow ODFW access to the land to drive elk away from other farming areas.

• Build and maintain a holding pond for wildlife use.

• Enhance and maintain vegetation for wildlife.

— Alice Perry Linker