shay, tl 1985 rjprm & abuse of power

7/24/2019 Shay, TL 1985 Rjprm & Abuse of Power

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R JNEESHPUR M

AND THE ABUSE OF POWER

T. L. SHAY Ph.D.

-= == - -~- - -- - ~---------------


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Copyright March, 1985 by T. L. Shay

A

II

rights reserved. No portion of this book may be

reproduced or transmitted in any form, mechanical or

electronic, without written permission from the Scout

Creek Press, except by a reviewer who may quote

brief passages in connection with a review.

Manufactured in the United States of America

Scout Creek Press

P.O. Box 3

West Linn, Oregon 97068

503) 635-1333

This is a case study. It deals with the vital issue of

lawful government and the potential for the abuse of

power. It examines, in outline, some of the most

important legal and political developments that have

surrounded the Rajneeshee community in Oregon.

Too often this subject has been discussed in an

atmosphere of confrontation and misunderstanding.

Extraneous issues, biases, personality clashes and an

amazing array of rumors have contributed to the loss

of factual perspective. Fear of the unknown, cultural

and religious intolerance, media distortion and

sensationalism have all added to an

irrational climate

of opinion in which reasoned accommodation has been

rendered almost impossible. And often, actions of

various governmental units have also failed to

contribute clarity and justice.

This article, therefore, is written in the belief that,

As they struggle with the mysteries of Rajneeshism,

what citizenr of this grand state require most is

perspective.

Unfounded claims, rumors and accusations are not

analyzed here. It is time, instead, to abandon

distortion and verbal overkill. For example, it is

unfortunate, but irrelevant, that some Rajneeshees

have used words like fascist , idiot , redneck and

bigot in reference to their opponents. And it is

equally unfortunate and irrelevant that some

opponents hove referred to Rajneeshees with words

like cultists , brain-washed , zombies and

satanists .

Also not considered here are Rajneeshee religious

beliefs or practices, I festyles, morals or values. One

of the bosi c tenets of Amer icon democracy is that as

long as people obey the laws their faith and practices

are not the legitimate concern of government.

America is also founded

on

a faith in equal justice

under law cn,d an abhorrence of arbitrary and abusive

government. Officeholders must always be public

servants, never masters. And the rights of minorites

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are a sacred trust for all Americans, for we are all

members of some minority some of the time.

This article focuses on factual events, on

behaviors, on their consequences and their

implications. Actions do speak louder than words.

he

0

1nvosion of

Antelope

Of all the issues, the so-called invasion and

subsequent take-over of Antelope has been the most

distorted and has inflamed public opinion most

seriously.

Antelope is a tiny hamlet some 20 miles from the

former Big Muddy Ranch. The 1980 census revealed a

population of 39, few of whom had lived there more

than ten years or so. Since 1970 it had been described

as a Ghost Town . The only business, the Antelope

Cafe and Store, was for sale, as was 75 percent of the

property in town. Few o~tsiders had any interest in

purchasing property there.

In July of 1981 the followers of Bhagwan Shree

Rajneesh bought the over-grazed, ecologically

devastated Big Muddy Ranch. In order to have

adequate telephone service, they purchased two

commercial lots in Antelope to set up a trailer-based

communications center. They also bought two of the

several houses for sale as living quarters for the

staff. By September they had purchased four

additional lots. At the same time, the Rajneeshees

were trying to develop their ranch. They were granted

permits by Wasco and Jefferson counties to locate

trailers there.

Then the IOOO Friends of Oregon became

involved. This self-styled public interest lobby

considers itself the watch-dog of Oregon's land use

laws. Their staff of Portland-based attorneys litigate

a wide variety of land use cases, seeking to institute

their own interpretation of the statutes in court

decisions. One of those interpretations is that non

farm uses of land must be located in an already

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existing urban area with a designated Urban Growth

Boundary (UGB). Moreover, again by their

interpretation, Oregon law precludes the development

of any new cities on rural land, regardless of the

agricultural value or productivity of that land, without

completion of an extensive and untested exceptions

process .

Based on these views, I 000 Friends' lawyers told

the Rajneeshees that they would be opposed in court if

they sought to have urban-type services on their

ranch. Instead, the 1000 Friends specifically advised

them to locate their non-farm services in Antelope,

the nearest town with a UGB.

In an early legal brief I000 Friends stated,

Antelope is committed to providing essentiai

facilities and services and Antelope is committed to

encouraging housing inside its urban growth boundary.

Furthermore, the Rajneeshees may not rely on the

hostility of Antelope residents to excuse residing

there Consequently, non-farm uses should locate in

Antelooe, consistent with the County Comprehensive

Plan. J

Facing this kind of opposition and in need of

additional facilities, the Rajneeshees purchased more

lots in Antelope. The purchases were followed by

increased local hostility and rumors of invasion .

In order to use their land and buildings, the

Rajneeshees requested remodeling and construction

permits from the Antelope City Council. The council

achpted a strategy of delaying the consideration and

granting of the permit requests, offering a variety of

justifications. They also created a previously non

existent position of Zone Code Enforcement Officer,

ensuring further delays, and eventually adopted a

temporary moratorium on the issuance of permits

entirely. Thus began the abuse of power by a local

government.

These actioos were clearly discriminatory and the

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Mayor made it clear that he felt he would only

represent the views of the longer term residents.

Moreover, there was no candidate for Town Marshal

and the candidates for Recorder and Treasurer

withdrew from their uncontested races. Under these

circumstances, the Rajneeshees decided to stand a

write-in candidate of their own choice to oppose for

Mayor. They also offered write-in candidates in the

other three vacated races.

The election results were predictable since a

majority of the residents were Rajneeshees. The three

Rajneeshee Council candidates, the write-in

candidates for the uncontested posts, and the

Rajneeshee candidate for Mayor were winners. Three

non-Rajneeshee candidates for council seats, one a

write-in, were also winners. However, after the

results were tabulated, two of the non-Rajneeshee

Councilmembers-elect refused to serve. No other non

Rajneeshee residents of Antelope would agree to be

appointed to the council vacancies, even though they

were asked. Consequently, two additional Rajneeshees

were drafted to serve. One non-Rajneeshee, having

won an uncontested seat, did agree to take his place on

the council.

Now the take-over of Antelope was described as

complete and widely reported by the media using that

pejorative term. However, the fact that Rajneeshees

were sworn into all but one of ten Antelope city

government positions by February I, 1983 was not the

result of a carefully pre-planned strate9r nor of a

Machiavellian manipulation as some in the media

implied. Neither was it the result of ballot-box

stuffing nor of voter fraud, but rather an outcome

determined by a perfectly democratic election.

A majority of the residents of a town elected their

city officials from among the candidates who had

agreed to run. By the time of the election, the

Rajneeshees had purchased more than 38 pieces of

property, most of which, it should be recalled, had

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been for sale even before their arrival. They clearly

constituted a majority of the town's citizens. And

those citizens now had a government of those among

them who had won election and agreed to serve.

The most unfortunate thing that can be said about

this election is that voting broke along religious lines.

However, such patterns of election decision-making

are not uncommon in America.

he

ew axes

When the new city council took office, they found

that some important records and the city seal were

missing. The treasury had a balance of just $180.16 in

January, while bills outstanding totaled $1,338.22 by

February I. In addition, the former City Attorney,

who had resigned, submitted a bill for $13,900.00 for

services rendered the old council. There was no city

tax to help shore

up

the overburdened treasury. There

was also no city police force and other city services

were underfunded and inadequate.

An increase in water rates seemed one possible

source of needed funds, so the council raised them

from $10.00 to $20.00 for residential and from $20.00

to $40.00 for commercial users. A $20.00 irrigation

fee was instituted for the summer months. Fire

protection rates were also

incrr1sed, from $1.00 to

$4.00 per month per property. In the absence of

adequate property tax funding, these were the only

means of balancing the city's budget.

On May 17 the city's voters passed a special one

year operating levy and agreed to pay about $18.00 per

$

000.00 valuation on property to finance it. This, in

combination with property taxes already levied for

education, brought Antelope's tax rate into rough

parity with those of other Wasco County towns. Since

there was now another source of budget-balancing

funds, the council agreed to lower water rates as

promised.

In spite of this, non-Rajneeshee residents

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complained bitterly about the increase in taxes.

However, most of the longer term citizens had sold

their property and left town during the preceding two

years. It was reported in July of 1983 that only about

13 of them remained to be affected by the enactment

of the new taxes. Therefore, virtually all of the

increased tax burden fell on the 80 or so Rajneeshee

residents of Antelope.

The New Names

The take-over theme has also been related to the

fact that the Rajneeshee majority on the city council

voted to change many names of the streets in

Antelope. Most were renamed after world renowned

religious leaciers.

Later, in August of 1984, acting upon a petition

signed by about one-third of the residents, the Council

approved referral of a measure to change the name of

the town from the City of Antelope to City of

Rajneesh. The voters were to decide the issue on

September 18.

The Wasco County Clerk decided that this election

would be a controversial one and so declared there

would be no polling place in Antelope itself. Anyone

wishing to vote, she said, would have to

do

so by

casting an absentee ballot or by traveling the 180

miles round trip to the Wasco County Courthouse in

The Dalles on election day.

The Mayor and other city officials protested. The

County Clerk responded that state law does not

require polls to be physically located within precincts,

even though there had been a polling place in Antelope

for as long as anyone could remember.

A circuit court judge ruled that there is no specific

law dealing with the removal of a municipal election

outside of the boundaries of that municipality. The

clerk's decision stood, in spite of the fact that, in

terms of inconvenience, it represents the equivalent of

requiring a Portland municipal election to be held in

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Corvallis.

All but one voter, who traveled to The Dalles,

chose to cast absentee ballots. The election results

were 57 in favor of the name change and 22 opposed.

Antelope is now officially the City of Rajneesh.

he

School

One of the earliest fears of the longer term

Antelopians and nearby ranchers was the prospect of

an influx of Rajneeshee children into the school system

and a resulting increase in property taxes. The

Rajneeshees were specifically asked and agreed from

the begiming not to send their children to the local

school. Instead they agreed to establish a private

school on the ranch. Nevertheless, the ranch was

located within the Antelope School District. Thus

Rajneeshees paid property taxes to help support a

school which their children did not attend.

Even so, by I 983 several of the nearby ranchers had

petitioned the Wasco and Jefferson County Boundary

Boards to have their property moved into either the

Maupin or the Madras district. The petitions were

accepted. Over 200 square miles were to be removed

from the Antelope district, leaving only property on

the Rajneeshee ranch and in the town itself to be

taxed in support of the school. To achieve this clearly

gerrymandered taxing district, Antelope and the ranch

were connected by a one foot

wide

strip of land that

stretched for fifteen miles. As a result, Rajneeshees

would be expected to provide the bulk of the tax

money to operate a school their children still did not

attend.

Not surprisingly, Rajneeshees voted against a

district budget request in June and also elected one of

their community to a vacancy on the school board.

The board members sent a reduced levy request to the

voters and it too was defeated. Whereupon they

decided to close the Antelope school and send the

twelve non-Rajneeshee elementary schoolchildren to

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Madras. Yet another levy, however, was requested to

pay part of the temporary cost of their tuition and

transportation.

Before these proposals could be put to the voters,

the Wasco County ESD determined that the School

Board which had devised them was improperly

constituted. The redrawing of boundaries had removed

the property of four board members from the Ante lope

School District. This rendered them ineligible to vote

in the district and, therefore, to serve as members of

the school board. Four new property owners had to be

appointed by the ESD to fi II the vacated seats.

Rajneeshees were selected since they were the only

applicants and they received overwhelming support

from the residents of the recently truncated District.

The new board decided to keep the schoo I open for

all students in the district. However, all non

Rajneeshee families chose to send their children

elsewhere. So school began in the fall of 1983 with 53

children of Rajneeshees in attendance.

The Lincoln School, as it is now known, has

probably been subjected to more thorough scrutiny

than any other institution of its kind in Oregon. A

fact-finding team and education officials conducted

reviews in October and November of 1983. A

standardization team of six from the Department of

Education completed a two-day review in April of

1984. The State Children's Services Division sent

investigators in June. Each visit produced a report

that standards were being met or exceeded. The

Lincoln School, with its expanded K through 12

program, has held a State Certificate of

Standardization since September of 1984. Finally, the

Superintendent of Public Instruction personally

surveyed the grounds and programs in February of

1985.

The Community Church

Another generally misunderstood issue concerns the

10

Community Church, built as a Methodist-Episcopal

institution in 1896 when the town was much larger. In

October of 1953 it was transferred by warranty deed

to the Antelope School District. In August of 1969 the

school district transferred it to the City of Antelope

with a quit-claim deed.

After the failure of the April 1982 disincorporation

election, the old city council, without prior notice to

the public, transferred the building and accompanying

lots to the Episcopal Diocese of Eastern Oregon. This

occurred at the May 4 council meeting, without the

matter having been listed on the agenda.

In March of 1983 the new council began to seek the

return of the property to the city. They alleged that

the May action had been illegal and improper; that

procedures had been violated and authority exceeded.

They also contended that the old council had given

away valuable city-owned property at a time when the

town was in debt and that the community still needed

the building as a location for community activities and

the lots upon which the fire hall and a recycling center

were situated.

On April 29, the old council, which had been out of

office since January, met to pass a retroactive

ordinance , thus attempting to legitimize the May

1982 transfer of the property to the Episcopal

diocese. This was an unusual digression from lawful

governmental action.

After over a year in the courts, in July of 1984, a

Wasco County Judge ruled against the present city

council. His reasoning was that the transfers of 1953

and 1969 to units of government had been invalid

because they violated the separation of church and

state. Therefore, the school district and city could not

have owned the property but must be seen, rather, as

having held it for the citizens who eventually

transferred it to the diocese. This decision seems to

have settled

the

issue of ownership for the time

being. However, the Judge did not specifically address

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complaigts against the

1982

actions of the old

council. The case is now on appeal.

The Take-Overn of Wasco County

The take-over theme was not confined to

Antelope. By the fall of 1984 many Wasco residents

were alarmed that the Rajneeshees might take over

the county government in the November elections.

Their fears were stimulated by the Sharing a Home

program, which the Rajneeshees had initiated to

relocate numerous street people at their ranch.

It has been reported that 3700 homeless people

were recruited from among the most destit~te in

sixty-one major metropolitan areas nationwide. The

program offered them medical attention, nutritious

food and housing in a clean, drug-free, crime-free

environment. It also offered them encouragement and

support to transform their lives for the better.

Bus fare to Oregon was provided for all and return

fare to those boarding the buses before September 23

who later might decide to leave. Return tickets were

no longer promised to newcomers after that date.

They were asked to sign an understanding to that

effect and to consider carefully whether they were

committed to a change of lifestyle. However, some of

the later arrivals did eventually decide to leave the

ranch. They subsequently called upon or were offered

charitable resources in Portland, Madras and The

Dalles for return transportation.

By the end of 1984 somewhat fewer than I000

Sharing a Home participants remained at the ranch.

Exact figures are uncertain. Some of these have

adopted the religion of Rajneeshism, others have not.

The number remaining represents a 20 25 percent

success rate in the rehabilitation of people from the

most dehumanizing slums of our urban ghettos. Such

an accomplishment is remarkable. It can also be

viewed as representing a savings in taxes and

charitable funds in the long run that will far outweigh

12

the transportation costs some non-Rajneeshee

charities contributed to those who left.

But many viewed this program quite differently.

No sooner had it begun than rumors began to circulate

that the Rajneeshees were going to import hordes of

street people in order to take over Wasco County

government in the November elections. Two of the

three county court commission seats were at stake and

contested. Each candidate had indicated that he or

she was not favorably predisposed towards the

Rajneeshees.

Any attempt by the Ra jneeshees to take over

would have required mounting two write-in

campaigns. Then an enormous bloc vote of

Rajneeshees and newcomers would have had to be

delivered. There were several media reports pointing

out the virtual arithmetic impossibility of these fears

being realized. But reasoned arguments had little

effect on the situation.

Non-Rajneeshee voter registration in the county

soared. Anti-Rajneeshee groups in Albany and

elsewhere announced plans to go to Wasco on or near

election day to register and to vote illegally in order

to save the county. Wasco officials pleaded with

these people to stay home. Meanwhile the

Rajneeshees announced that they would offer two

write-in candidates and that they would take over

Wasco County . These actions were later explained as

a joke designed to determine how far opponents

might go.

Calling for public calm, the Secretary of State

directed the Wasco County Clerk to halt all voter

registration on October 12. She then established a

novel plan of requiring all prospective voter

registrants to travel tThe l?alles. ?n.d. underg? a

screening to determine their el1g1b1ltty. Fifty

attorneys were recruited to administer the plan.

The Rajneeshees contested the legality of the plan

13


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in U.S. District Court to no avail. They also asked

that some provision be made to conduct screenings in

south Wasco County. They argued that to require

nearly 4000 potential voters to travel 180 miles round

trip in order to be questioned placed undue burdens on

and potentially deprived citizens of their rights to

register and thus to vote.

. The court did not require a south county location

for the screenings , however, and the Secretary of

State would not acquiesce to the request for anyone

but the handicapped. Nineteen Rajneeshpuram

residents submitted to the process in The Dalles on the

first day. Two registrants were rejected as ineligible.

However, the Secretary of State later admitted that in

a post-election court

challgnge both were in fact

deemed qualified to register.

One result of the required travel time, distance and

first day rejections was that many Rajneeshees and

newcomers were unable to or discouraged from

attempting to register. Moreover, only two days were

scheduled for screening all applicants. Many of the

citizens of Rajneeshpuram chose to boycott a

registration procedure they held to be prejudicial and

unfair, and to boycott the election as well. They

decided after the election, however, not to contest the

results in court, although they might have had grounds.

Another consequence of the situation was that 93

percent of the registered voters in Wasco County

turned out to vote in November 1984. 13,561 ballots

were cast, of which only 249 were from

Rajneeshpuram. The obvious arithmetic was the final

disclaimer to all rumors of impending take-over.

A successful Rajneeshee write-in candidate would

have had to receive a bloc of votes in excess of 6,656

to win by the barest of majorities. There never were

anywhere near that many potential voters at the

ranch, even assuming all living there were eligible,

registered, and voted in the same way.

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In fact, a winning write-in Rajneeshee candidate

might have had to receive many thousands more than

just the 6,656 minimum votes. Non-Rajneeshee

candidates for county court/commission seats had

already discussed the possibility of one candidate for

each seat withdrawing at the last moment. Such a

single candidate opposing a write-in Rajneeshee would

have presumably received almost all of the non

Rajneeshee votes, given the climate in the county.

Thus it might have taken more than 13,312 votes for a

Rajneeshee write-in candidate to win the election.

The take-over of Wasco County existed only in

the rumors that some anti-Rajneeshees circulated and

in the joke the Rajneeshees instigated. One

consequence of all of this, however, was to heighten

the fears of some Wasco citizens. Another was to

cause the media to largely ignore the positive results

of the Sharing a Home program.

The ermit roblems

Almost from the beginning, both Wasco and

Jefferson counties presented the Rajneeshees with

permit problems similar to some they had experienced

before the Antelope City Counci I. In most such cases,

1000 Friends was once again involved.

The land-use lobby group protested issuance of

trailer-housing permits for workers on the ranch. They

opposed permits for support structures. They took

credit for Jefferson County Court /Commission action

to limit the size of a medical facility and of a school

in 1981, and of a church in 1982. At one point, they

asked the Bonneville Power Administration to delay

the provision of needed electrical power lines to the

ranch.

When the Rajneeshees requested a permit for their

first religious festival in 1982, almost every facet of

the proposal was opposed by 1000 Friends. They

argued that the festival should not be allowed at all on

ranch land. They fought to prevent the completion of

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a needed sewage treatment lagoon. They took a stand

against the installation of a water supply system

needed for fire fighting.

In this instance, state law and constitutional

guarantees of freedom of worship and assembly

supported the Rajneeshees' request. According to

Oregon's mass gathering law all that is required to

obtain a festival permit is a demonstration that public

health and safety wi II be adequately protected. The

Wasco County District Attorney attested to the law

and Rajneeshee compliance at the April

court/commission public hearing. The Wasco body

granted the permit, stipulating deadlines, inspections

and other requirements to be met. The stipulations,

however, did not prevent one Commissioner who

agreed with 1000 Friends' arguments from resigning in

protest.

From April until August, nearly a month after the

summer religious festival was held, I 000 Friends

initiated a series of actions against it. They wrote to

the Health Division, the Department of Environmental

Quality, the Governor and even local newspapers in

attempts to halt the issuance of permits. They filed

petitions and argued before the Wasco County Circuit

Court, in two separate actions before Land Use Board

of Appeols (LUBA) and in two actions before the

Oregon State Court of Appeals. In each case the

rulings of the judicial bodies left permission for the

festival intact.

Meanwhile, the Jefferson County

Court/Commission refused to issue a permit for the

religious event. The Rajneeshees appealed and the

Deschutes Circuit Court ordered the

Court /Commission to grant the request.

In 1982, 1983 and 1984 summer religious festivals

were held successfully and without untoward

incident. In 1985, however, the agreement to grant a

festival permit was delayed by the Wasco County

Court/Commission. The body included as newly

16

elected the very Commissioner who had resigned over

the issuance of the 1982 permit. This

Court/Commission granted the mass gathering permit

but with new stipulations of a sort never befor~

required in the state. Once again, governmental

authority was employed to single out one community

for exceptional treatment.

Since 1981, several state agencies have been

involved in permit and inspection issues. One of the

more serious and certainly more unusual examples is

the 1985 situation in which the State Department of

Commerce fined Rajneeshees for violating state

electrical codes in 640 huts or winterized tents

which had been erected at the ranch. The fine for this

minor infraction was set at $1,400,000.00. The State

Building Code Administrator admitted that this

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l

.I

I

treated. Land use statutes are, at best, ambiguous

with regard to the topic. Goal

14,

which deals

specifically with the creation of Urban Growth

Boundaries (UGBs) does not explicitly deal with the

incorporation of cities in areas outside of already

existing UGBs. The Rajneeshees, Wasco County

Court/Commission, Wasco County Circuit Court,

LCDC, LUBA, and the State Court of Appeals, as well

as many legislators, have all interpreted this ambiguity

differently at different times. The result has been a

welter of administrative and judicial confusion.

The Oregon State Constitution is much clearer on

the issue of incorporation. It provides for Home Rule

and states that, The legal voters of every city and

town are hereby granted

pwer to enact and amend

their municipal charter Oregon's implementing

statutes provide that 150 or more people living in an

area outside of an already existing city may initiate

the incorporation of their own city. At least

10

percent of them are first to petition the appropriate

county court/commission, which then holds one or

more public hearings and approves a detailed order for

an election. If a majority of those residing in the

area vote to incorporate, the county recognizes the

creation of a new city by proclaiming the election

results. One issue under contention is what impact, if

any, SB I

00

was intended to have on this statutory

procedure.

Implementation of SB I

00

over the years has

res~lted in land in or near existing cities being

designated as urban or urbanizable if it falls within

UGBs adopted by local governments and approved by

LCDC. Almost by default, all land not falling within a

UGB, or specifically designated for some other use

such as forest or recreation, has been categorized as

Exclusive Farm Use (EFU). SB 100 contained no

explicit provision concerning the incorporation of a

new city outside of an established UGB, that is, on

EFU land.

- 18 -

Former State Senator Ted Hallock, one of the co

authors of SB I 00, has explained legislative intent as

being the protection of truly valuable agricultural

land. He has also said that during the 1973legislative

deliberations, the incorporation of new cities was

never considered to be a matter governed by SB l

00.

I spent five months of agony fighting to get

that bi II through the legislature, and I can tell

you that not for one moment was any

consideration given to the possible formation of

new cities. My primary purpose was to protect

good farm land from further encroachment by

existing urban areas. Not once did we discuss

the evolution of a new city in a semi-desert

area what you're doing here (Rajneeshpuram)

is totally cff'mensurate with the intent of our

legislation.

Another issue under contention is whether or not

the statutory language adopted by a

1981

legislative

session amendment renders land use planning goals

applicable to the incorporation of new cities. The

attempt to clarify land use issues specifically related

to annexation was worded as follows: Cities and

counties shall exercise their planning and zoning

responsibilities, including, but not limited to, a city or

special district boundary change which shall mean the

incorporation or ~rrexation of unincorporated

territory by a city

One judicial decision has held this language

ambiguous and not intended by the legislature to apply

to the incorporation of new cities. It reasoned that if

the legislature had intended such an application, it

would have worded the phrase to read incorporation

of or annexation of . Another decision disagreed,

saying that the passage is not ambiguous, although it

could have been more artfully drafted and that it does

rende~ ~and

1

~se goals applicable to the incorporation of

new c1t1es.

Meanwhile, 1000 Friends of Oregon has developed

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its own interpretation of the relationship of Oregon's

land use planning laws to incorporation. Their

attorneys have insisted that: urban development may

only take place on land within established UGBs; no

new cities may be incorporated on EFU land,

regardless of the agricultural value of that land; and

no urban-type services may be provided in rural areas

without the completion of an inexplicably complex

procedure called an exception .

A third issue under contention is this matter of

whether or not the exceptions process as outlined in

Goal 2 applies to the incorporation of new cities. This

process could ta.ke years and, as of early

1985

had

never been successfully completed by anyone in the

state who had been challenged.

Arnold Cogan, the first Director of the Department

of Land Conservation and Development, and head at

the time that the land use planning goals were written,

has clarified LCDC intent relating to new

incorporations and Goals

14

and 2. In

1983

he

explained that:

It is important to note that Goal

14

was not

intended to prohibit new urban areas or new

cities, nor was it anticipated that Goal 2

exceptions to Goal

14

would be required to

justify newly urbanizing areas. Again, hod this

been the intent of the goals, it wou\1 have been

inserted in a clear, exp Iicit manner.

LCDC had itself clarified this point in a May

1979

Exception Policy Poper. Their position was that the

exceptions process does not apply to Goal

14

because

Goal 14

contains its own conflict resolution

mechanism.

These are some of the central issues of

interpretation which have been raised relative to the

incorporation of Rajneeshpuram. However clear

original intent may appear to be, administrative

agencies and the courts have been embroiled in a

- 20-

confusing labyrinth of controversy over these issues.

The lncorporatim of

Rajnees~ram

When the Rojneeshees purchased the 64,229 acre

Big Muddy Ranch in July of

1981

they voiced their

intention to develop an agriculturally based commune

where they could live, work and practice their

religion. The community was to be a home for those

who wished to shore in an experimental application of

religious teachings to everyday I fe.

They purposefully bought some of the most over

grazed and abused land in Oregon. Part of their vision

was to practice agriculture in the most technologically

advanced, yet ecologically restorative and supportive

way possible. They began to implement intensive

agricultural practices, which required the labor of a

substantial population. This, in turn, necessitated the

provision of housing, medical services and the like.

Light industrial facilities, such as for the maintenance

of equipment, were also needed.

For its religious activities, the community required

other types of facilities. It needed a church or

meditation hall and means for book publication and

distribution. There were communications needs, of

course. And after several months there was a need to

develop facilities for the many guests and tourists who

began to arrive to visit the settlement.

The ranch was about

20

miles from the hamlet of

Antelope, which provided none of the needed

services. The nearest location of some of those.

facilities was Madras, a city of under

3000

population

some one and one-half hours' drive away.

Consequently, the Rajneeshees sought permits from

Wasco and Jefferson counties for some basic facilities

on their ranch. Trailer housing and office space were

requested first and permits were somewhat reluctantly

granted.

As early as September 1981

however,

1000

Friends

challenged requests for basic facilities permits for the

- 21 -


13/30

ranch. They contended that such services should not

be allowed on EFU land. Recall that it was 1000

Friends who originally told the Rajneeshees t1't they

must locate their non-farm uses in Antelope. This

led to Rajneeshee requests for permits in Antelope and

the problems resulting therefrom. They also decided

to seek the creation of their own city on ranch

property as a means of providing services. Relying

upon the advice of some of Oregon's finest land use

law experts, they sought to follow the provisions of the

state constitution and the explicit wording of

incorporation and land use planning statutes in

requesting the required election.

On October i4, 1981 a petition was filed in The

Dalles seeking the incorporation of 2,135 acres of

Rajneeshee ranch land. A three and one-half hour

hearing on the request was held by the Wasco County

Court/Commission on November 4. About 200 people

attended.

The Rajneeshees and ten or so others testified

concerning the need for incorporation to provide non

farm services, fire protectioo, a water system

hospital, stores and the like. The LCDC Field

Representative for the area testified that LCDC would

remain neutral on the issue of incorporation. He said

that LCDC would not become formally involved until

after the incorporation had taken place. He added

that the Rajneeshees had been receptive to land use

planning goals and guidelines in preparing their

request.

1000 Friends attorneys and others testified against

allowing an incorporation election primarily on the

grounds that the creation of a city on ranch property

would violate land use planning Goals 3 and

14.

They

reiterated their interpretation that Goal

14

precludes

the incorporation of any new cities on EFU land. They

repeated their position that the only way the

Rajneeshees might be allowed to provide non-farm

services on the ranch would be to go through the

22

essentially untried and potentially protracted

exceptions process .

The Wasco County Court/Commission expressly

disagreed with I000 Friends regarding the need for an

exceptions process . In doing so, they relied on the

interpretations in LCDC's 1979 Exception Policy

Paper.

In spite of the arguments of I000 Friends, the

Wasco County Court/Commission, by a 2 to I vote,

adopted the findings submitted by the Rajneeshees and

granted the petition for an incorporation election.

They set the election for May 18, 1982.

Throughout the November 4 hearing, and during the

many administrative and judicial proceedings they

later initiated, 1000 Friends continually stressed their

interest in protecting valuable agricultural land, a

Goal

3

concern. In

1983,

the Director of I

000

Friends

wrote: ullification of the Rajneeshees' city status

is the only way to restore Oregon's farmland

protection laws to the Muddy Ranch. This has been

the sole purposf7 of I000 Friends' efforts since

September 1981.

However, the November 4 hearing clearly showed

that the acreage to be incorporated consisted largely

of Class VI and VII soils. Much of it was also steeply

sloped. Later the application of Federal Bureau of

Land Management standards revealed that the portion

of the ranch to be incorporated had the agricultural

land use potential of supporting nine cows. This 2,135

acres was virtually useless wasteland, unsuited for

anything except the grazing of nine head of cattle.

Yet complex administrative and legal battles have

ensued. The area has seen escalating hostility. High

costs have been incurred by a II concerned, including

Oregon taxpayers. These have been some of the

consequences of I000 Friends' sole purpose of

restoring Oregon's farmland protection to nine cows.

In pursuit of this purpose and almost immediately

23


14/30

after the Wasco Court /Commission decision, I 000

Fri ends, often joined by three nearby ranch couples

who are members of the organization, began a

protracted and costly process of appeals. They sought

to delay, modify and/or reverse the November 4

decision.

That same month they wrote asking the Governor

to direct LCDC to institute legal action to invalidate

the Wasco decision. Such action did not follow. In

December, I 000 Friends filed a notice of intent to

appeal the November 4 decision to LUBA. They also

filed a petition asking the Wasco County Circuit Court

to review and ~verturn the incorporation hearing

proceedings. The Circuit Court dismissed the request,

deferring to the LUBA review. 1000 Friends appealed

this dismissal to the Court of Appeals.

In January, the organization aided a rancher in

filing a complaint with the State Ethics Commission

calling into question the integrity and impartiality of

one of the Wasco County officials who had voted in

favor of holding the incorporation election. This

particular action was settled in May when the Ethics

Commission dismissed all complaints against the

official.

Also in January, the 1000 Friends and the three

ranch couples filed a petition asking LUBA to review

and reject the November 4 decision to schedule an

incorporation election.

he

State Approves Rojneest1 Urom

On March 12, 1982 the Land Use Board of Appeals

dismissed the petition for review of the county's

decision by a unanimous vote. In part LUBA's

reasoning included the determination that ;tote land

use _goals wer: not inte~ded by the legislature to apply

to incorporation elections and the creation of new

cities. The opinion states:

We conclude that application of the goals is not

feasible in the incorporation process given the

- 24 -

limited discretion afforded county governing

bodies by statute in this process. Because

application of the goals in the incorporation

process is not feasible, we conclude the

legislature intended to use the term

incorporation in its nonlegal sense and, thus,

did not intend the goals to be applied in the

incorporation process We conclude that the

1981 legislature in amending ORS 197 175 (I)

did not intend to require thf goals be applied in

the incorporation process.

I 000 Friends filed for Court of Appeals review of

the LUBA decision a few days later. In April, they

requested that LUBA take action to delay the

incorporation election; LUBA declined to do so.

Twice, in April and in May, I 000 Friends requested the

Wasco County Circuit Court to enjoin the election.

Twice the circuit court declined to

do

so.

On May 18, the residents of the area voted 154 to 0

to incorporate the City of Rajneeshpuram. Eight days

later, the Wasco County Court /Commission proclaimed

the incorporation and set an August 10 date for

election of a city council.

1000 Friends also filed for injunctions to halt this

election, and/or prohibit any city council which might

be elected from making any land use decisions and/or

prohibit them from exercising any planning or zoning

responsi bili ti es.

The Wasco Circuit Court denied the request to

enjoin this election. They also refused to grant a

permanent injunction against land use decisions by a

duly elected Rajneeshpuram City Council. The ruling

did, however, contain the following provisions: a

temporary order was granted stating that the city

council did not have the right to administer county

plaming and zoning laws within city limits; the council

was required to delay zoning decisions until the

Rajneeshpuram Comprehensive Land Use Plan had

been adopted; the council was asked to notify I000

25


15/30

Friends 24 hours before any

1

f its meetings and to

provide them with an agenda.

In spite of two requests by I 000 Friends that the

council be enjoined from holding hearings on and

adopting a comprehensive plan, the circuit court

allowed the proceedings. By early September

Rajneeshpuram had adopted a Comprehensive Pion and

Development Code. Thus, the council replaced the

Wasco Court /Commission as the ruling body on land

use decisions for the 2,135 incorporated acres that

constituted the city. By mid-September the circuit

court had ruled that Rojneeshpuram was quite within

the low in establishing a city council, adopting a

comprehen

2

bve plan and in proceeding to implement

that plan. Not satisfied with that ruling,

IOOO

Friends asked LUBA to review the city's adoption of a

land use plan and development code.

Later in the fall of I 982, the three volume

Rajneeshpuram Comprehensive Pion, which had

received very widespread recognition for its

thoroughness and professional quality, was adopted by

Wasco County and submitted to LCDC for review. By

January of 1983, 1000 Friends attorneys had filed some

38 pages of objections to the plan.

Their most important substantive argument against

the pion concerned the ovailabi lity of water. I000

Friends claimed that Rajneeshpuram's use of water

would damage nearby farming operations. The

Rajneeshees responded by citing hydrologist reports

that ground water reserves were well in excess of

projected needs, that the ranch is a self-contained

aquifer system and that it does not draw off water

from neighboring property. The Rajneeshees also hod

instituted a wide variety of the most advanced water

conservation programs and had just completed

construction of an earthen dam and reservoir capable

of storing up to 330 million gallons of runoff water.

A subsequent survey conducted by the Oregon

Water Policy Review Board confirmed that existing

26

water supplies could provide for 16,000 people on the

ranch and in the city. It reiterated that the ranch's

ground water aquifers do not affect ground water

availability on neighboring properties. Moreover, the

report concluded that the effect of Rajnee~e water

use on the John Day River was very minor .

In February of 1983 the Mayor of Rajneeshpuram

reported that the Department of Land Conservation

and Development (DLCD) staff had only raised three

minor objections to the city's comprehensive plan.

One question related to whether the city boundary had

been drawn in such a way as to encourage the most

efficient provision of city services. Beyond this, the

Mayor reported, DLCD staff hod rejected or refuted

every objecti22 to the plan which had been raised by

1000 Friends.

The

State Disapproves Rojnees'1:>urom

In early March 1983 a three-judge panel of the

Oregon Court of Appeals reversed the LUBA decision

of the previous March. They did not agree with LUBA

that it Jacked jurisdiction to consider the Wasco

Court/Commission decision on the grounds that

allowing

2


16/30

.1

that time, a legally incorporated city. LCDC rejected

the staff proposal to postpone consi1

5

ation of the

comprehensive pion by a vote of 4 to 3.

Also worthy of note is the state legislature's June

passage of SB 360. The bill specifically provided for

state land use goals to apply to the incorporation of a

new city . Obviously legislators did not believe the

goals hod applied in such cases before their adoption of

the explicit statutory requirement. If they believed

the issue to hove been adequately treated by the

statutes, they would hove been passing a redundant

low.

Equally worthy of note is I000 Friends' lobbying

activity on SB 360. One other substantial argument

they hod brought forth against Rajneeshpuram was the

claim that it would create a precedent for the

incorporation of cities on more fertile land. Should

the city be allowed to exist, they argued, developers

would use incorporation as a way in which to

circumvent land use lows. They might incorporate

cities on the rich agricultural lands of the Willamette

Valley which SB I 00 hod been intended to protect.

This fear was laid to rest by the passage of SB 360,

which specified incorporation as a land use issue.

However, IOOOFriends further sought to convince

legislators to make the provisions of the new law apply

retroactively to the incorporation of Rajneeshpuram.

The legislature did

~t

include such a retroactive

feature in the statute.

Also in June, LCDC met to consider Rajneesh

puram's Comprehensive Plan. Four hours of testimony

were heard and four critical votes were taken. First,

LCDC rejected a request from I 000 Friends for an

enforcement order that would have stopped develop

ment in the city. Second, they rejected a motion to

deny the comprehensive plan because there had been

no justification for or exception taken to two of the

planning goals. Third, LCDC rejected a proposal to

postpone action on the plan because of litigation

28

pending before the State Supreme Court. Finally, they

approved the comprehensive plan as being in

compliance with 13 of the 14 statewide planning

goals. They did return it to Rajneeshpuram, however,

and grant 150 days to correct flaws in that portion

dealing with the way in which the UGB had been

drawn. All four cr~fal issues were decided on the

basis of 4 to 3 votes.

With the plan essentially approved, the city council

set about making their UGB and city limits more

compact and contiguous, as required by LCDC. In

order to

do

so they informed Wasco County of their

intent to annex

119

acres to the city and return over

300 acres to an EFU designation. They believed this

action, which proposed a smaller city acreage and a

redrawn UGB, would satisfy the problem identified by

LCDC.

However, the Wasco County Planning Commission

refused to hear or consider the requested plan changes

on four separate occasions and the Wasco County

Court/Commission refused to hear on appeal of these

actions. After several months of delay, the city

council proceeded with the annexation and rezoned the

acreage.

Towards the end of June, IOOO riends had filed a

petition asking LUBA to stay the implementation of

the Rajneeshpuram Comprehensive Pion and to stay

developmnent in the city. In August LUBA denied the

stay. Not long after the city council's annexation

action, however, IOOOFriends again filed suit seeking

to halt development. This time they filed in the Wasco

County Circuit Court. Wasco County later joined the

suit, specifically objecting to development on the

annexed acres. Both groups eventually sought not only

to stop all construction, but also to prohibit use of any

already completed buildings in the area.

At the end of June I 983, the Oregon Supreme

Court refused to review the decision of the appeals

court to remand consideration of the Rajneeshpuram

- 29-


17/30

incorporation election to LUBA. The denial of review

was made without comment. LUBA was ordered to .

reconsider the case on its merits.

At this juncture one of the co-sponsors of the

original land use law, SB 100,stated:

I 000

Fri ends has done a

I

ot for Oreg on but on

this issue they are full of baloney. Their inter

pretation of Senate Bill

I 00

and mine are two

completely different things We never

envisioned an experiment like this

(Rajneeshpuram) This city is %upport of a

wonderful agrarian experiment.

heLCDC Temporary'' md Retroactive Rule

I000 Friends had failed to persuade the legislature

to apply the provisions of SB 360 retroactively to

Rajneeshpuram. Taking another approach, they were

reported to have worked closely with DLCD staff to

draft a new LCDC rule that would achieve the same

goal.

On July 14 of 1983, LCDC promulgated an eight

page temporary rule to go into effect immediately.

Their stated purpose was to give direction to LUBA

in its interpretation of the land use goals as they apply

to the incorporation of new cities. Not only did the

new rule interpret the goals and go into effect

immediately, it also was to be applied retroactively to

August 1981.

Interestingly, according to the state statutes which

govern LCDC's own procedures, all temporary rules

have a life of only 180days. Within that time period

they must be either made permanent or terminated. It

is difficult to understand how a temporary rule, with a

I fe of only 180 days, could be made to apply to events

which '2'9d occurred two years, or some 700 days,

earlier.

Leaving that aside, the thrust of the retroactive

rule was to require that county authorization of an

- 30 -

incorporation election for land outside of a UGB must

include the process of filing for and justifying an

exception to land use goals. This newly interpreted

requirement was to apply to all county decisions on

incorporation elections made since August 21, I 981.

That meant that the retroactive feature of the rule

applied to the Wasco County decision on

Rajneeshpuram, and only to that decision.

One observer commented:

The astonishing thing about the administrative

rule promulgated in July 1983 is that it was

made retroactive to August 1981 to include the

incorporation of Rajneeshpuram in November

1981. This is the first time that it was stated

publicly that the urbanization goal (Goal 14) of

the land use law prohibits the incorporation of a

city

on

rural land unless an exception - a

lengthy legal process - is taken to the goal. 30

The 1000Friends staff and the DLCD staff argued

that the rule was not really new , but rather merely

an interpretation of how the land use goals were

always to have been applied to cases of incorpora

tion. Moreover, they argued, such clarification and

interpretation was needed to guide LUBA in its review

of the Rajneeshpuram case.

The incorporators' attorneys argued that the rule

was not only completely new, but also represented

substantial changes from the original land use goals.

They pointed out that the new agency rule flatly

contradicted LCDC's own 1979 policy paper, in which

they held that the exceptions process does not apply to

Goal 14.

Moreover, the lawyers for the incorporators

reasoned, any goal that now required eight pages of

interpretation could hardly have been considered

clear in its original form. To make such a

clarification apply retroactively to govern a decision

made in good faith two years earlier by Wasco County

- 31 -


18/30

puram. And after the LUBA rulings, they made

additional requests of the Wasco County Circuit

Court. They asked the court to issue orders for the

removal of all structures in the city which had been

constructed under permits issued by the city since the

adoption of the Rajneeshpuram Comprehensive Plan in

September of 1982. They also asked the court to order

the removal of the community's sewer and water

systems. In sum, they sought the destruction of the

city, based upon the LUBA rulings, which in turn had

been based upon LCDC's retro41rtive rule, which they

had reportedly helped to write.

On March 21, 1984 the Court of Appeals rendered

an opinion in the matter. They handed down a decision

which stated that the September ruling by LUBA was

in error. They overturned the LUBA ruling.

In part, the appeals court opinion stated that,

LUBA's interpretation is really a de facto goal

amendment. The decision continued by saying that

the incorporation of rural land is not in and of itself a

violation of state land use planning goals. Insofar as

the LCDC retroactive rule embodies a contrary

misinterpretation of the goals, it too is invalid, they

declared. The court did not elect to rule on the

constitutionality of LCDC's retroactive rule. The case

was remanded to LUBA for further consideration.

1000 Friends and others requested the Court of

Appeals to reconsider its opinion, t~

1

first step in an

appea I to the Oregon Supreme Court.

LCDC decided to maintain its earlier position,

disregard the appeals court ruling, and continued to

consider Rajneeshpuram's incorporation to have been

flawed , pending a Supreme Court decision. The

commission members also agreed to join

IOOO

riends

in appealing the Court of Appeals decision which

reversed LUBA's ruling and their own concurrence.

During these several months, LCDC also denied

Rajneeshpuram's request not to transform the

temporary rule into a permanent one and its petition

- 36-

to repeal or suspend the retroactive rule.

The State Dis~roves Rajnees~uram

Once

Again

On June 27, 1984 the Oregon Court of Appeals

reversed its own decision of March 21. It was a 180

degree reversal. The 3 to O March opinion was

reversed by a minimal 6 to 4 margin. Historically,

such a Court of Appeals reversal of itself is

exceptionally rare.

The majority opinion held that the city must return

to the Wasco County Court/Commission to go through

the difficult exceptions process . The reversal was

explained as being necessary in order to give the

a~prop

4

~ate degree of judicial respect to LCDC

rulings.

IOOO riends then said they would ask the circuit

Court to rule the city illegal. The incorporators'

attorneys decided to appeal the unusually reversed

decision to the Oregon Supreme Court.

In a related ruling on the same day, the appeals

court held that Rajneeshpuraro had failed to complete

a required exceptions process in annexing the 119

acres. Of course, it would have been difficult for

them to have known that to annex in August 1983

required the exceptions process. The appellate court

had only just made the process applicable to

incorporation that day, June 27, I 984. Nevertheless,

the decision meant that the

J

19 acres reverted to EFU

land and thus to the control of Wasco County.

Meanwhile, 1000 Friends had brought suit in circuit

court seeking removal of all buildings on the annexed

acreage. Rajneeshpuram attorneys appealed the Court

of Appeals ruling.

Some state and county agencies decided, on the

basis of the appeals court reversal of itself, to

consider the city to hove been invalidly incorporated.

For example, Wasco planning bodies, and eventually

the Court/Commission, acting according to their own

interpretation of LCDC, LUBA and Court of Appeals

37


19/30

decisions, voted to remove all references to Rajneesh

puram from the county's comprehensive plan. This

action was tantamount to rescinding the earlier

ordinance adopting the city's comprehensive plan.

However, the appeals court had merely required the

incorporators to return to Wasco County to pursue the

exceptions process. It had not declared the city to be

illegal.

The Court of Appeals reversal of its own March

decision brought criticism from many quarters.

Among those comments was an editorial in the Eugene

Register Guard. It called for the legislature to pass

clear laws concerning the incorporation of new cities.

It went on to state, The prospect of retroactive

municipal aborticr based on ex post facto land-use law

is unappealing.

Lmd Use l~ues in Perspective

When evaluating all of the legislative, judicial and

bureaucratic confusion and contradiction in this case,

three vital factors must be kept in mind.

First, the land use laws of Oregon are, at best,

vague and ambiguous insofar as they relate to the

incorporation of new cities in rura I areas. At worst,

these Jaws are incomplete, inapplicable and

incomprehensible as they relate to the issue at hand.

The authors of SB 100 disagree as to what they

meant to include and to exclude from the jurisdiction

of the statute. The 1981 session of the legislature did

not unambiguously clarify the matter. The various

di rectors of DLCD disagree as to whether or not

incorporation was ever meant to be or actually has

been regulated by the goals of LCDC. LCDC members

themselves have been divided in their understandings

and interpretations of their own rules. Most

importantly in this case, LCDC members were divided

on the issue of fairness of applying their retroactive

administrative rule.

The petitioners for the incorporation of Rajneesh-

- 38-

puram have been the victims of this governmental

chaos. Those petitioners and Wasco County officials

acted in good faith and with the best available legal

advice in 1981-82 when they approved incorporation.

They made every effort to comply with the State

Constitution, the statutes on incorporation and the

land use laws at that time.

Initially the Land Use Board of Appeals agreed with

their understanding and ruled that incorporation was

not a land use issue. The Court of Appeals read the

regulations differently and reversed LUBA, remanding

the case for further consideration. The state legis

lature entered the morass in an attempt to clarify its

position, but refused to render its clarifications

retrooctively applicable to Rajneeshpuram.

At this juncture LCDC decided to give guidance to

LUBA in its application of land use laws by adopting

the temporary and retroactive administrative rule to

apply to Rajneeshpuram, and only to Rajneeshpuram.

LUBA then accepted the retroactive interpretation of

LCDC's rules and referred the matter back to Wasco

County.

However, on appea I from the incorporators of

Rajneeshpuram, the Court of Appeals overturned the

LUBA decision. Then the Court of Appeals took the

unusual step of reversing itself, overturning its own

earlier decision by a narrow majority. The Supreme

Court is now deliberating the issue.

If additional evidence is needed to illustrate the

ambiguity of Oregon's land use laws as they may or

may not apply to the incorporation of new cities in

rural areas, it is available as follows. Votes taken on

the critical incorporation issues by the various

tribunals that have rendered decisions are listed in the

form of a score card on the following page.

The score card'' reveals an almost Kafkaesque

scenario. Confusion, uncertainty and contradictions

have plagued the decision-makers in this case. The

39


20/30

Date, Tribunal,

Approve

Issue

City

November 4, I 981, Wasco

County/Commission approves

incorporation election

2

March 12, 1982, LUBA holds that

land use laws

do

not apply 3

March I, 1983, Court of Appeals

reverses LUBA and remands

0

June 2, 1983, LCDC refuses

to stop development

4

June 2, I 983, LCDC refuses

to deny comprehensive plan

4

June 2, 1983, LCDC refuses

to postpone vote on plan

4

June 2, 1983, LCDC approves

13 of 14 Goals in plan

4

July I4, 1983, LCDC adopts

temporary retroactive rule

3

September 26, 1983, LUBA

holds that exceptions process

required

0

September 29, 1983, LCDC

accepts LUBA September 26

ruling

2

March 2 I 1984, Court of

Appeals reverses LUBA

ruling

3

June 22, I 984, Court of

Appeals reverses Court of

Appeals March ruling

4

TOTAL VOTES ON

33

CRITICAL ISSUES

- 40-

Disapprove

City

0

3

3

3

3

3

4

5

0

6

32

most knowledgeable administrative and judicial minds

in state government who have participated in the

various decisions about Rajneeshpuram s incorporation

are in almost complete disagreement.

In summary, no general agreement exists in the

State of Oregon concerning the meaning of land use

laws as they relate to the incorporation of a new city

in a rural area. While the City of Rajneeshpuram is

still struggling to be fully validated at law, however, it

is an existential fact. Thousands of Oregonians live

and work in the city or in the farming operations which

the city supports.

The second vital factor which must be remembered

in evaluating this situation relates to the preservation

of Oregon s prime agricultural land. Such preservation

was one of the essential purposes which motivated the

enactment of a statewide land use planning program

from the outset.

In this regard, it bears repeating that the land upon

which Rajneeshpuram has been located is almost

entirely within the least fertile classifications for soil

types. The only possible agricultural use of the 2000

or so acres which comprise the city would be for the

grazing of nine cows.

Outside of the city, there are some 62,000 acres

now used not only for grazing, but some of which is

under cultivation. The farming practices employed by

the Rajneeshees on this land have been acclaimed as

being not only efficient and highly productive, but also

sensitive to the ecology of the area.

Intensive farming, extensive water conservation

projects, and vast reclamation programs have been

employed. The most severe erosion problems on the

ranch have been virtually eliminated. Experiments

with new methods and new crops initiated by the

Rajneeshees may prove to be of great benefit to future

farming activity in the arid regions of central Oregon.

In sum, the Rajneeshees have greatly increased the

41


21/30

state's pool of agricultural land. In the face of that

fact, there is an unacceptable irrationality in the

insist~nce of 1000 Friends that their particular rigid

and controversial interpretation of the land use laws

must be upheld at all costs, including the physical

dismantling of the city. In one of their legal briefs

IOOO

riends asks the court to hold that: '

The election for the incorporation of

Rajneeshpuram and the election of a city

council were illegal; the proclamation declaring

the city's incorporation is null and void; and the

City of Rajneeshpura~ does not exist and has

never lawfully existed.

The protection of grazing lands that could support only

nine cows is not a reasonable justification for the

destruction of a city. Such a position seems all the

less reasonable when that city is in support of an

agrarian experiment which is adding to the total

agriculturally productive acreage in the state.

The third factor which must not be forgotten when

assessing Rajneeshpuram is that it is a fully

functioning, economically productive, crime and drug

free city. Its structures have been planned to blend

into the rugged landscape. It houses fifteen

corporations and forty-seven businesses. The total

investment in the city and the ranch has exceeded

$130,000,000.00,

making a very major contribution to

Oregon's economy. It has become one of the state's

key tourist attractions, with some

I 00,000

visitors

annually, and is the center for worldwide religious

festivals four times a year.

Above all, Rajneeshpuram sets a standard for

cle~n, non-polluting rural-urban harmony and

environmental compatibility in the finest of Oregon

traditions. And its existence harms no one.

The

Religious City Issue

The Attorney Genera I of the State of Oregon

acting in his capacity as legal counsel for the state

ha~

- 42 -

represented LCDC in the land use cases. In addition,

in October of 1983, he issued a 59 page advisory

opinion

concerning the religious nature of the city.

Such an opinion does not have the force of law.

Nonetheless, it was widely welcomed by many who

oppose the presence of Rajneeshees in Oregon.

The AG's opinion contended that Rajneeshpuram

violates both state and federal constitutional

guarantees of separation of church and state. It

expressed the belief that the city should not be

permitted to provide any services because there is a

pervasive and unavoidable intrusion of religion into

city government.

However, the AG did not fully document his

position and admitted that he had assumed many

facts about Rajneeshpuram in preparing the opinion.

For example, he noted that the city's land is owned by

a religious corporation and then assumed as fact that

only Rajneeshees are permitted to live upon that

land. The Mayor of Rajneeshpuram, on the other hand,

has stated that residence is not restricted to members

of the religion.

The AG's opinion further claimed that the separate

statuses of city government, the Rajneesh Investment

Corporation, the Rajneesh Neo-Sannyas International

Commune and the Rajneesh Foundation International

are only technical and not substantial. It goes on to

assert that in a pervasively religious city, exclusively

owned and exclusively inhabited by the religion and its

members, every city action would directly affect the

religion .. This would clearly constitute the prohibited

government entanglement with religion. Further

more, the AG stated his belief that There is in effect

a total fusion of government and of religious

functions. In short, as presently constituted, thi~

ity

is fundamentally incapable of behaving as a city.

Finally, the Attorney General asserted that the

Secular and religious effects f l

governmental actions

are inextricably intertwined. However, he did not

- 43 -


22/30

cite any specific actions of the city council which

might provide some evidence to support his claims.

Rather, he stated that his department and other state

agencies would investigate the validity of his

assumptions. If they were substantiated, he planned to

challenge the legality of Rajneeshpuram in the

courts. In the meantime, however, he proceeded to

give advice based on his opinion. For example, he

recommended that the Governor sign HS 3028 and

direct that all state revenue-sharing funds be withheld

from the city and placed in escrow.

By November the AG had filed suit in Wasco

County Circuit Court against the city, the religious

foundation, the investment corporation and the

farming commune. His complaint was similar to his

"opinion" and alleged that the city violates state and

federal constitutional principles of the separation of

church and state. He also charged that residence in

the city is controlled by religious bodies or leaders.

The AG's suit sought a judicial declaration that

Rajneeshpuram may no longer exercise governmental

powers. It also asked for a ruling that the city is

ineligible to receive public moneys. Finally, the AG

requested that the court award the state attorneys'

fees and other re Iief.

In December, Rajneeshee lawyers removed the suit

to the U.S. District Court in Portland. The AG

countered with a motion to remand the case back to

the Wasco County Circuit Court. In March, the

district court ruled against the A G's request. His suit

was ordered to remain in federal court since it deals

with federal statutes and provisions of the United

States Constitution. Interestingly, the AG's own brief

contained several pages of citations referring to

federal provisions. Even more surprising, a few days

later the AG filed a motion to dismiss his own case.

This was an intriguing attempt to avoid federal

jurisdiction in the matter.

The AG's next move was to refile a modified

- 44-

complaint in the Wasco Circuit Court, naming Wasco

County and the County Sheriff as defendants _along

with the Rajneeshees. Rajneeshee attorneys agam had

the case removed to the U.S. District Court since it

still involved U.S. constitutional issues. They also

argued that inclusion of the county ?nd the Sh~rif ~as

a maneuver designed solely to avoid federal Jurisdic

tion. They contended that these were not appro~riate

defendants, but rather that they were also hostile to

the existence of Rajneeshpuram. Nevertheless, the

Attorney Genera I ago in requested that the case be

returned to the county circuit court.

In July, the federal judge ag~in rejected. the AG'~

motion. The ruling agreed with the RaJneeshees

contention that the county and Sheriff "must be

aligned with the state as plaintiffs" because tryt ave

the same interests in the case as the state.~ The

Attorney General responded by appealing the decision

to the U.S. Ninth Circuit Court of Appeals, where the

matter is now being considered.

During the same time period in. which these

complicated legal maneuvers were taking place, the

Attorney Genera I proceeded to take ot he_r se~ ?Vs

measures against the city. Even though his opmton

stil I lacked the force of law and had not been upheld

by any court, the Attorney Gener.al continu.ed to use it

as the basis for several actions detrimental to

Rajneeshpuram.

In December, he instructed the manager of the

Oregon Law Enforcement Data System (LED;S) o deny

requests from the Rajneeshpuram .P~ace (Police) F o~ce

for access to information. In add1t1on, the Accounting

Division of the Executive Department was advised to

withhold money for the city's

911

emergency telephone

system. Shortly thereafter, city officials were

informed that denial of access to LEDS would

automatically brinq denial of access to data from the

FBl's National Crime Information Center (NCIC).

The Rajneesh


23/30

potentially endangering the city's residents. They

became increasingly concerned for life and safety in

the absence of information and the emergency phone

system. They reminded the state of the threats which

had been directed against the community and of the

earlier bombing of the Hotel Rajneesh in Portland.

They emphasized that the three actions were based on

a LUBA ruling which was under appeal and an Attorney

General's opinion as to the city's legality which hod not

as yet been upheld in any court of law. The Mayor of

Rajneeshpuram noted that the city was being

condemned as guilty until proven innocent .

The protests were to no ova

i

I. In fact, the

Attorney General continued his policy of selectively

treating Rajneeshpurom as non-existent. In September

of 1984 he declared the city's Peace (Police) Force not

to be legally constituted. This view was based on his

belief that the city is not legally constituted.

At that time, the Peace Force consisted of 16

officers trained at the State Police Academy and of 30

trained reservists. The AG has subsequently issued

instructions to bar all training for Rajneeshpuram

officers in the future. It should be noted, however,

that the Oregon State Police reportedly still consider

Rajneeshpuram to have an authorized police force.

All of the actions by the Attorney General seem,

once again, to single out this city for singular

treatment by government. However the statutory and

constitutional issues related to the city and religion

may eventually be resolved, surely it

will

only be after

many years of litigation and appeal. In the meantime,

the actions of the AG in attempting to enforce his

interpretations of the law prior to formal judicial

resolution of the matters seem designed specifically to

inconvenience the residents of Rajneeshpuram. More

than that, his moves against police protection

functions for the community hove few consequences

other than to render it increasingly vulnerable to any

and all hostile or criminal actions.

- 46 -

The New Legislative Proposals

Early in the 1985 session of the legislature, some

politicians could not resist proposing new anti

Rajneeshee legislation.

Representative Fawbush announced that he was

considering a proposal that would keep the Rajneesh

(Antelope) police force from getting access to the

state's Law Enforcement Data System. As it

happened, after the AG had instructed that

Rajneeshpuram be denied access to LEDS, the City

Council of Rajneesh applied for access. The Fawbush

proposal would reportedly deny cities with c

population of less than 1,000 access to the systern.

The City of Rajneesh is the only city which has oppli


24/30

McTeague claims that city elections, city officer

recall, initiative and referendum petitions might all be

ineffective remedies against such a city government.

He dismisses court suits as expensive, time consuming

and ineffective to remedy "prospective acts". Since

these methods may not be useful in removing

autocratic municipal governments, he suggests his

amendment, whereby the "Legislature could review

overall operations of a city government and determine

under broad polic~

0

guidelines if a city is abusing

municipal powers."~ However, his proposal includes

no indication as to what those "broad policy guidelines"

would be.

History reveals that Oregon's Constitution was

amended by initiative petition some 80 years ago to

remove the legislature's power to repeal city

charters. Legislators were forbidden from tampering

with charters precisely because of abuses by the

state's politicians. Needless to say, the Legislative

Committee of the League of Oregon Cities (LOC) is

reported to have voted unanimously "to oppose a

constitutional amendment which S rould allow the

legislature to repeal city charters."

Of course the LOC has realized that such a vast

and ill-defined power could be used against any and all

cities in Oregon. However, McTeague has made it

perfectly clear that his proposed amendment is

directed solely at Rajneeshees by introducing two

additional bills. HB 2892 would repeal the Charter of

the City of Rajneesh and HB

2893

would repeal the

Charter of Rajneeshpuram, upon approval in a

referendum. Singling out the two cities which happen

to have majorities of citizens of one religious

conviction is undoubtedly contrary to First Amend

ment, due process and equal protection provisions of

the U.S. Constitution.

McTeague's proposals have been recognized as

discriminatory and dangerous. As one newspaper

editorial noted:

- 48 -

A constitutional change drafted specifically

to allow discrimination against one group could,

at some future date, be turned on any group.

Oregonians .... should continue to work within the

legal system to seek accommodation with the

Rajneeshees. They should reject McTeague's

proposal to l521alize discrimination against the

Raj neeshees.

Interestingly, Representative Fawbush is listed as a

co-sponsor. Sadly, the same three pieces of l~~islation

have also been introduced in the state senate.

Such proposals seem designed to earn OncJon the

dubious distinction of being one of the most l>lqoted

states in the country. At the very leust, t hoy he lie

Governor Atiyeh's prediction as to how we will be

viewed by posterity. In his openin~Jocldrr.ss o thu 1985

Legislative Assembly the Governor cfoclornch

Another generation will remember our

uncompromising statement that religious and

racial harassment ore offensive to Oregonians

and wils be tolerated nowhere within our

borders.

4

The buse of Power

The entire situation surrounding the Rajneeshee

community in Oregon has begun to take on an air of

unreality not unlike that found in Alice's Wonderland.

But this is reality, this is the United States and the

Rajneeshees stand to be real victims of the

governmental system.

Rojneeshpurarn has become ensnared in the most

complex incorporation/lnnd-use labyrinth ever created

by a state qovernrm~nt. Thf? leqislotive, administrative

and judiciol confusion is so pervasive that ttm decision

makers who hnv, rulod on ttw lssu


25/30

confrontation between the Rajneeshees and the 1000

Friends of Oregon, we are witness to two determined,

assertive and well-financed organizations locked in an

intricate legal battle.

Various units of government in Oregon have

become involved in this confrontation. What must be

demanded by citizens is that such governmental

involvement be fair, open, lawful and impartial.

Instead, there are a number of examples wherein

government has failed in its great responsibility and

has used its power arbitrarily. This is the abuse of

power which must not be permitted to go unchallenged

or uncorrected.

In some instances, the courts have played a vital

role in correcting arbitrary or discriminatory actions

by government. One example is the Wasco County

Circuit Court's order to the "old" Antelope City

Council to cease its obstructive behavior and issue

lawfully requested permits. Another example is the

same court's reversal of the Jefferson County

Court/Commission decision to refuse to grant a

religious festival permit, an action clearly not in

accordance with the law.

In other instances, the courts are still considering,

on appeal, various questionable governmental actions.

Among such actions are the "temporary" and

"retroactive" rule of LCDC and the LUBA decisions

guided by that rule. Such actions include also the

Attorney General's complaint, which has been based on

his "assumed" facts concerning th

shay, tl 1985 rjprm & abuse of power

Documents