the COLUMBIA GORGE, INC. et al., Plaintiffs,
SCHAFER, Secretary of the
Civil No. CV 04-1423-MO.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
624 F. Supp. 2d 1253
Nov. 24, 2008.
*1260 Gary K. Kahn, Reeves Kahn & Hennessy, Peggy Hennessy, Reeves Kahn & Eder, Portland, OR, for Plaintiffs.
Stephen J. Odell, United States Attorney’s Office,
OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
For at least the last 18,000 years, since its scouring by the Lake
Missoula Flood, the Columbia River Gorge has been one of the most unusual and
beautiful places on earth. Its centerpiece, of course, is the mighty Columbia
River, a 2000 kilometer jewel that divides much of
Against this backdrop of competing interests and features, Congress designated a portion of the Gorge as a National Scenic Area. This case concerns the Columbia River Gorge National Scenic Area (“Scenic Area”) and its management. The Friends of the Columbia Gorge, Inc. and other organizational and individual plaintiffs (collectively “Friends of the Gorge”) challenge the decision by Regional Forester Linda Goodman, acting on behalf of Edward Schafer, Secretary of Agriculture (collectively “Secretary”), to concur with the Columbia River Gorge Commission (“Commission”) that the Revised Management Plan (“RMP”) for the Scenic Area is consistent with the standards and purposes of the Columbia River Gorge National Scenic Area Act (“Scenic Area Act”), 16 U.S.C. §§ 544–544p. Friends of the Gorge alleges that the Secretary’s decision was arbitrary and capricious or in violation of the law because provisions of the RMP violate the Scenic Area Act.
The matters now before the court are Friends of the Gorge’s Motion for Summary Judgment (# 76), the Secretary’s Cross-Motion for Summary Judgment (# 91), and the Secretary’s Motion for a Stay (# 97). The majority of Friends of the Gorge’s claims are not ripe for judicial review; in particular claims 1.1, 1.2, 2.1, 2.2, 4, 5, and 6. Claims 2.3, 2.4, 7, and 8 require the court to determine whether the Secretary’s action was arbitrary and capricious*1261 or not in accordance with the law. The court holds that the Secretary’s concurrence was not in accordance with the law as to the Rowena Dell portion of claim seven and as to claim eight. Friends of the Gorge’s motion for summary judgment is therefore DENIED as to claims one through six, GRANTED IN PART and DENIED IN PART as to claim seven, and GRANTED as to claim eight. Accordingly, the Secretary’s cross-motion is GRANTED as to claims one through six, GRANTED IN PART and DENIED IN PART as to claim seven, and DENIED as to claim eight. The Secretary’s motion for a stay pending a decision by the Oregon Supreme Court is DENIED.
In 1986, President Reagan signed the Scenic Area Act into law,
creating the Scenic Area. The Scenic Area falls within two states,
The Act creates rules and procedures for managing the Scenic Area to further the goals of:
(1) establish[ing] a national scenic area to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources of the Columbia River Gorge; and
(2) protect[ing] and support[ing] the economy of the Columbia River Gorge area by encouraging growth to occur in existing urban areas and by allowing future economic development in a manner that is consistent with paragraph (1).
16 U.S.C. § 544a. It also divides the land in the
Scenic Area into three categories: (1) special management areas, (2) urban
areas, and (3) general management areas.FN1 The special management
areas are specifically identified in the Act and are largely considered the
most vulnerable areas.
FN1. The term “general management area” does not appear in the Scenic Area Act; however, the term is used throughout the management plan to identify lands not within either the special management or urban areas.
A unique aspect of the Scenic Area Act is the division of management authority it creates between the Secretary, the Commission, and various local governments.
A. The Commission
The Commission is a bi-state agency created by
B. The Secretary
The Secretary has primary authority over the federal lands within
the Scenic Area.
C. Local Governments and Other Entities
Other governing entities within the Scenic Area, including local
governments and Indian tribes, also play a management role. For example, section 544d(e) provides that the Commission and the Secretary
“shall exercise their responsibilities pursuant to [the Scenic Area Act] in consultation with Federal, State, and local
governments having jurisdiction within the scenic area or expertise pertaining
to its administration and with Indian tribes.” The counties are also permitted
to adopt land use ordinances consistent with the management plan. However, if a
county fails to do so within the time provided by the Scenic Area Act, the
Commission “shall make and publish a land use ordinance setting standard for
the use of non-Federal lands in such county within the boundaries of the
national scenic area, excluding urban areas.”
D. The Management Plan
The Scenic Area Act mandates that the Commission adopt a Scenic
Area management plan within three years of the Commission being formed.
After a plan is adopted, the Commission must review it to
determine whether it should be revised, “[n]o sooner than five years after
adoption ... but at least every ten years.”
II. The Revised Management Plan
The Commission adopted the initial management plan for the Scenic
Area in October 1991. The Secretary concurred that the plan was consistent with
the purposes and standards of the Scenic Area Act in early 1992, and the
management plan has been in effect since that time. In 1997, the Commission and
the Forest Service began the first review of the plan and the Commission
adopted the final RMP in April 2004. The RMP was then sent to *1263 the Secretary for review,
and the Secretary delegated his authority to review the plan to the Regional
Forester for the Pacific Northwest Region of the Forest Service, Linda Goodman.
Friends of the Gorge filed a complaint in
The Secretary filed a motion to dismiss, a motion for partial summary judgment, and a motion to stay the case pending a decision by the Oregon Court of Appeals in the concurrent state case. In December 2005 the court denied the motion to dismiss and granted the motion to stay the case. In March 2006 the court denied the motion for partial summary judgment, with leave to refile. The stay ended in January 2008 after the Oregon Court of Appeals issued its decision in Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Commission, 215 Or.App. 557, 171 P.3d 942 (2007).FN2 The parties then filed cross-motions for summary judgment.
The decision of the Oregon Court of Appeals was appealed to the Oregon Supreme
Court, which allowed review in July 2008. Friends of the Columbia Gorge, Inc. v.
Friends of the Gorge seeks (1) a declaration that the Secretary’s concurrence and the challenged portions of the RMP violate the Scenic Area Act, and (2) an injunction against implementation of the challenged portions of the RMP until they comply with the Act.
In his cross-motion for summary judgment, the Secretary counters that: (1) Friends of the Gorge lacks standing to pursue their claims; (2) the claims are not ripe for adjudication; and (3) the Secretary’s concurrence was not arbitrary or capricious and was in accordance with a reasonable interpretation of the Scenic Area Act.
STANDARD OF REVIEW
For cross-motions for summary judgment, the court “evaluate[s] each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences.” ACLU of Nevada v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir.2006) (quoting ACLU of Nevada v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir.2003)). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
Scenic Area Act provides for judicial review, 16 U.S.C.
§ 544m(b), but does not provide a standard of review;
therefore, the Administrative Procedure Act (“APA”)
standards apply. See Ninilchik Traditional Council
agency action is arbitrary and capricious “if the agency has relied on factors
which Congress has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that
runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of agency
expertise.” Motor Vehicle Mfrs. Ass’n of the
The Secretary argues that because Friends of the Gorge made facial challenges to the RMP, they bear the burden of demonstrating that no set of circumstances exists under which the challenged portions of the plan may be lawfully applied. (Defs.’ Mem. in Supp. of Summ. J. (# 92) at 29) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”); Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (extending the “no set of circumstances” standard to agency regulations reviewed for inconsistency with the authorizing statute.) However, the Ninth Circuit has recently called the “no set of circumstances” standard into question. See Sierra Club v. Bosworth, 510 F.3d 1016, 1023-24 (9th Cir.2007) (stating that Supreme Court jurisprudence is divided on whether the standard is dicta or a generally applicable rule, collecting cases, and refusing to apply the standard to the Forest Service’s establishment of National Environmental Policy Act (“NEPA”) categorical exclusions). Therefore, this court will apply the traditional arbitrary and capricious standard in this case.
When a court reviews an agency’s construction of a statute it
administers, it must first determine “whether Congress has directly spoken to
the precise question at issue.” Chevron
The Secretary’s motion for summary judgment argues that the court lacks subject matter jurisdiction over the case because (1) Friends of the Gorge lacks standing and (2) the case is not ripe for adjudication. (Defs.’ Mem. in Supp. of Summ. J. (# 92) at 25, 27.) “The party asserting federal jurisdiction bears the burden of proving the case is properly in federal court.” In re Ford Motor Co./Citibank (S.D.), N.A., 264 F.3d 952, 957 (9th Cir.2001).
brought by a plaintiff without Article III standing is not a ‘case *1265
or controversy,’ and
an Article III federal court therefore lacks subject matter jurisdiction over
the suit.” Cetacean Cmty.
v. Bush, 386 F.3d 1169, 1174 (9th Cir.2004) (citing Steel Co. v.
Citizens for a Better Env’t, 523
Where the plaintiff is an organization, as several of the
plaintiffs are here, it has standing to sue on behalf of its members where the
“members would otherwise have standing to sue in their own right, the interests
at stake are germane to the organization’s purpose, and neither the claim asserted nor the
relief requested requires the participation of individual members in the lawsuit.”
Laidlaw Envtl. Servs., 528
1. Injury in Fact
an injury-in-fact, plaintiffs must allege that they have suffered a concrete,
particularized harm as to each individual claim. See id.
at 185, 120 S.Ct. 693
(“Standing is not dispensed in gross.” (quoting Lewis v. Casey, 518
In Laidlaw, the defendant was given a permit to discharge treated water into a nearby river. Testing showed that Laidlaw was exceeding the allowable pollution levels under its permit. An environmental action group sued the company for failing to comply with the permit standards. Plaintiffs asserted they were harmed by Laidlaw’s actions because they had used the river for various recreational activities, but were now afraid to do so because of the smell and pollution caused by Laidlaw. The Supreme Court held the group had standing because “they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Laidlaw Envtl. Servs., 528 U.S. at 183, 120 S.Ct. 693 (internal quotations and citation omitted).
fact that an injury has not yet occurred does not defeat a finding of standing.
See Wilbur v. Locke, 423 F.3d 1101, 1108 (9th Cir.2005) (holding that
“[o]ne does not have to await the consummation of threatened injury before
challenging” an action and seeking declaratory relief (quoting Canatella v. California, 304 F.3d 843, 852
(9th Cir.2002))). In Wilbur, plaintiffs alleged they would suffer injury
from a compact between the state and an Indian Tribe. However, because the
compact had not yet been enacted, the district court held the injury was only
“likely,” not “actual or imminent.”
Here, Friends of the Gorge has alleged sufficient injury for standing. They allege that their purpose is to protect and enhance the resources of the Scenic Area and that their members use the land at issue for “hiking, wildlife viewing, photography, camping, bird watching, and other recreational pursuits.” (Gorman Decl. (# 101) at 2.) Further, there are several individual plaintiffs who live, do business, or own property in the Scenic Area. Collectively, Friends of the Gorge asserts implementation of the plan revisions will have a direct negative impact on their activities and interests.FN3 Some of the plaintiffs have also alleged potential financial injury due to the Secretary’s action. (Third Am. Compl. (# 73) at 4.) The RMP has been adopted by the Commission and ratified by the Secretary, thus the potential injury is sufficiently imminent under Wilbur.
FN3. Plaintiffs have filed individual declarations (¶¶ 100-109) to this effect.
To have standing, plaintiffs must show that there is a substantial
likelihood that the requested relief, if granted, will redress the injury. Lujan
v. Defenders of Wildlife, 504
The Secretary argues that Friends of the Gorge’s claims are not redressable because the Secretary’s concurrence is not
required for the RMP to go into effect. (Defs.’ Reply (#
112) at 7.) He further argues that this court does not have the power to
require the Secretary to deny his concurrence because the Scenic Area Act
expressly states that the Secretary need not act at all. (
Perhaps the single biggest obstacle to the Secretary’s position on redressability is that the Scenic Area Act specifically provides for judicial review-review that is presumably designed to redress errors in the implementation of the Act. If the Secretary were correct regarding the power of this court, he would effectively be insulated from suit under the statute. *1267 This was not the intent of Congress in creating the citizen suit and judicial review provisions of the Scenic Area Act. See id. §§ 544m(b)(2) (citizen suit provision), 544m(b)(4) (judicial review provision), 544m(b)(5) (giving federal courts jurisdiction over “any civil action brought against the Secretary pursuant to this section”).FN4
The Oregon Court of Appeals determined that the management of the special
management areas was entrusted solely to the Secretary of Agriculture and the Forest Service, not to
the Commission. Friends of the Columbia Gorge, Inc. v.
In any event, it is purely speculative whether the Commission would have chosen (or would choose in the future) to overrule a denial of concurrence by the Secretary. Furthermore, the Secretary’s failure to act (which becomes a concurrence after ninety days) is subject to review, because Friends of the Gorge would be adversely affected by that final inaction of the Secretary. See id. § 544m(b)(4).
The Secretary also argues that this court does not have the power to set aside portions of the RMP as a remedy because the “agency action” involved was a concurrence indicating that the Secretary found the plan to be consistent with the Scenic Area Act, rather than the actual adoption or implementation of the plan. (Defs.’ Reply (# 112) at 7.) This is somewhat disingenuous because the Secretary is charged with developing guidelines applicable to the special management areas. 16 U.S.C. § 544f(f)(1). The Scenic Area Act states that the Secretary “shall promptly transmit the guidelines to the Commission for inclusion in the management plan,” id., and the management plan “shall incorporate without change the management direction for the use of Federal lands within and the land use designations for the special management areas adopted by the Secretary,” id. § 544d(c)(4). Friends of the Gorge’s claims relate solely to the special management areas.
This unusual piece of legislation is grounded in the idea of cooperation among different levels of government. It seems out of character with the terms of the Scenic Area Act to suggest that any order by this court will simply be ignored, rather than taken into account, in implementing the RMP.
The Secretary also asserts that this court lacks jurisdiction
because the case is not ripe. “[T]he ripeness requirement is designed ‘to
prevent the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative policies,
and also to protect the agencies from judicial interference until an
has been formalized and its effects felt in a concrete way by the challenging
parties.’” Ohio Forestry
Ass’n, Inc. v. Sierra Club, 523
Ohio Forestry, the Secretary of Agriculture had developed a land and
resource management plan under the National Forest Management Act of 1976 for a
national forest in
FN5. Friends of the Gorge also argues that the Scenic Area Act expressly contemplates pre-implementation judicial review of the management plan’s consistency with the standards and purposes of the Act. (Pls.’ Reply (# 98) at 13.) The citizen suit provision of the Scenic Area Act does not allow challenges to the consistency of the draft management plan prior to the certification or adoption of the plan. 16 U.S.C. § 544m(b)(3)(A)(iii). The court declines to adopt Friends of the Gorge’s argument that it “logically follows that those challenges are allowed after the Secretary’s concurrence determination” but before the plan is implemented. (Pls.’ Reply (# 98) at 14.) The court holds that Congress has not explicitly provided for pre-implementation review, therefore ripeness is governed by the Ohio Forestry analysis.
Friends of the Gorge attempts to distinguish Ohio Forestry, pointing out that in that case the Forest Service, the agency who adopted the plan, would have significant future involvement before any ground-disturbing activity would occur. They state that in the present case the Secretary will have no further involvement in implementing the revised plan except with regard to special management area forest practices and decisions regulating uses of federal land. (Pls.’ Reply (# 98) at 13.) However, federal land comprises the vast majority of the special management areas of concern in this case, therefore the Secretary and the Forest Service will be involved in the future management of the majority of the relevant land.FN6
FN6. In the Scenic Area, 115,000 acres are designated as special management areas, Friends of the Columbia Gorge, 171 P.3d at 948, and as of fall 2005, 27,376 of those acres are not federally owned, (Blosser Decl. (# 105) at 2.), leaving 87,624 acres of federal land within the control of the Secretary and the Forest Service. Of the non-federal land, 8,012 acres are privately owned and 19,364 acres are owned by the states and counties. (Blosser Decl. (# 105) at 2.)
*1269 Friends of the Gorge argues that if this court finds some or all of the claims unripe it will merely delay review to a less advantageous time, after the harm has already occurred. In essence, this argument proves too much. Whenever a court determines that a case is not ripe for adjudication, review is delayed until the alleged injury has become more concrete. They also argue that the counties will not “flesh-out” the regulations, therefore any flaws in the RMP will be carried down into the county ordinances. This prediction by Friends of the Gorge illustrates the ripeness problem in this case. This court has no way to know whether or not this prediction is true because the counties will not write their ordinances until the RMP goes into effect. More fundamentally, even if Friends of the Gorge is correct and the regulations stay the same, a future court would have the benefit of a more specific factual scenario on which to base a decision.
Because a ripeness analysis varies based on the facts and circumstances involved in a particular claim, the ripeness of each of Friends of the Gorge’s claims is analyzed below. Due to the complexity of the case and the difficulty of resolving the question of ripeness for some of the claims the court has also taken the opportunity to discuss the merits of each claim.
II. Cross-Motions for Summary Judgment
Friends of the Gorge brought twelve claims challenging the Secretary’s concurrence with several different elements of the RMP. Generally, the claims argue that implementation of the RMP will cause adverse effects on the scenic, natural, and cultural resources of the Scenic Area by allowing development, grazing, and other potentially disruptive activities to occur.
A. Claims 1.1, 2.1, and 6: Cumulative Adverse Effects on Scenic, Natural, and Cultural Resources
The Scenic Area Act requires that the management plan protect the Gorge’s scenic, natural, and cultural resources from adverse effects. See, e.g., 16 U.S.C. §§ 544d(d)(7)-(9). Adverse effects are defined as:
[A] reasonable likelihood of more than moderate adverse consequences for the scenic, cultural, recreation or natural resources of the scenic area, the determination of which is based on: (1) the context of a proposed action; (2) the intensity of a proposed action, including the magnitude and duration of an impact and the likelihood of its occurrence; (3) the relationship between a proposed action and other similar actions which are individually insignificant but which may have cumulatively significant impacts; and (4) proven mitigation measures which the proponent of an action will implement as part of the proposal to reduce otherwise significant affects to an insignificant level.
16 U.S.C. § 544(a).
In claims 1.1, 2.1, and 6, Friends of the Gorge asserts that the RMP fails to protect the scenic, natural, and cultural resources in the special management areas from adverse cumulative effects.FN7 Generally,*1270 Friends of the Gorge claims that the Scenic Area Act requires that the management plan contain “standards” with a sufficient degree of specificity to prevent adverse cumulative impacts and that the RMP does not contain such standards. (Pls.’ Reply (# 98) at 22.)
The Oregon Court of Appeals found for the Secretary on a similar claim related
to the general management areas. Friends of the
1. Ripeness of the Cumulative Adverse Effects Claims
The court holds that claims 1.1, 2.1, and 6 are not ripe. First, there is no hardship to the plaintiffs if review is delayed because there is no identified project that is going forward, no resource identified by name that will be harmed, and no identified agency action that is proceeding because of delayed review. Second, the challenged portions of the RMP related to scenic, natural, and cultural resources contemplate future review, either by the Forest Service or by some other administrative body. See, e.g., RMP I-3-33 (“All new developments and uses ... shall be evaluated....”); I-2-23 (“An assessment shall be undertaken to determine whether any cultural resources ... are present....”). Third, the court would benefit from further factual development because it is impossible to know today what regulations might allow or successfully prevent adverse cumulative effects in the future.
2. The Secretary’s Concurrence with the Cumulative Adverse Effects Guidelines
The court holds that the Secretary’s concurrence was not arbitrary
and capricious or contrary to law as to claims 1.1, 2.1, and 6. The Scenic Area
Act does not define what is necessary to prevent adverse effects to scenic,
natural, and cultural resources, leaving this to the Secretary, Forest Service,
and Commission. Cumulative effects are addressed when adverse effects are
addressed because the definition of adverse effects includes cumulative
effects. See 16
U.S.C. § 544(a)(3). The RMP contains provisions
designed to protect the scenic, see RMP I1-36
to -43, natural, see RMP I-3-30 to -45, and
cultural, see RMP I-2-22 to -26,
resources of the Scenic Area. Thus, the Secretary has not “entirely failed to
consider an important aspect of the problem” and his decision was not arbitrary
and capricious. Motor Vehicle
B. Claim 1.2: Compatible Development
In claim 1.2, Friends of the Gorge states that the RMP violates the Scenic Area Act because it contains no standards requiring that the height, overall mass, and other exterior dimensions of new development in the special management areas to be compatible with that of existing development (a requirement that is found in the general management area portion of the RMP). See RMP I-1-3 (general management area provision); RMP I-1-36 to -43 (special management area provisions).
1. Ripeness of the Compatible Development Claim
The court holds that claim 1.2 is not ripe. Again, the RMP does not create any legal rights or obligations. Further agency action will occur before any new development in special management areas is allowed because permits, either state or federal, are required before any building can occur. As noted, most of the land in the special management areas is federal land, so that a decision by a federal agency would be required before a specific project could go forward. That decision would allow for review of the compatible development claim in a much clearer factual context. The same basic rationale applies on non-federal land. Given the unique co-operative nature of the Scenic Area Act, the Ohio Forestry analysis applies even when, as here, the subsequent administrative*1271 action is by a different government agency. For these reasons, additional factual development is required to determine whether the failure to include this requirement would actually allow building to occur in violation of the Scenic Area Act.
2. The Secretary’s Concurrence with the Compatible Development Guidelines
The court holds that the Secretary’s concurrence was not arbitrary
and capricious or contrary to law as to claim 1.2. The RMP
contains several pages of policies and guidelines related to the protection and
enhancement of scenic resources through limits on new development. See RMP I-1-36 to -43. In
particular, the RMP requires that “scenic standards
shall be met by blending new development with the adjacent natural landscape
elements rather than with existing development.” RMP I-1-39. A difference of
opinion between Friends of the Gorge and the Secretary regarding the best way
to control new development does not demonstrate a “clear error in judgment” on
the part of the Secretary. See Lands Council, 537 F.3d at 993. Because
there is a rational basis for the Secretary’s concurrence, his decision was not
arbitrary, capricious, or in violation of the law. See Motor Vehicle
C. Claim 2.2: Water Resource Buffers
In claim 2.2, Friends of the Gorge argues that the RMP’s special management area water resource buffer policies and guidelines violate the Scenic Area Act by failing to protect natural resources in the special management areas from the individual and cumulative adverse effects of land uses and development.FN8 The RMP requires a buffer of 200 feet for wetlands, ponds, lakes, and perennial fish-bearing streams and fifty feet for non-fish-bearing intermittent and ephemeral streams.FN9 RMP I-3-33 to -34. Incursion into the buffer area is allowed with a mitigation plan that requires that adverse effects on the natural resources of the Scenic Area be avoided. RMP I3-33 to -36. The RMP provides for enlargement of water resource buffers when necessary to protect resource values. RMP I-3-34.
The Oregon Court
of Appeals found for the Secretary on a similar claim related to the general management
areas. Friends of the
FN9. Ephemeral streams are those “that contain flowing water only during, and for a short duration after, precipitation events.” RMP Glossary at 7.
Friends of the Gorge contends that the
water resource buffer policy violates the Scenic Area Act for three reasons.
First, they argue that the buffers are too small, thus failing to protect
natural resources. (Pls.’ Mem. in
Supp. of Summ. J. (# 78) at
16.) Second, they state that allowing any incursions into the buffer
areas is a violation of the Scenic Area Act. (
1. Ripeness of the Water Resource Buffer Claim
The court holds that claim 2.2 is not ripe. I look first at the argument that the buffer zones are too small. There is no hardship to Friends of the Gorge if review is delayed because there is no identified stream, pond, or wetland that will be *1272 harmed by the proposed buffer zones. Furthermore, a decision regarding the size of the buffer zones today would interfere with the Secretary’s further review of the buffer zones under the RMP, which provides for enlargement of buffers where necessary to protect resource values. RMP I-3-34. Finally, the court would benefit from further factual development because the proper width of a buffer zone will vary for each pond, wetland, lake, and stream in the Scenic Area.
As for the claim that the RMP improperly allows incursions into the buffer zones, similar concerns exist. Again, there is no particular water resource that Friends of the Gorge can state will be harmed if this court does not decide this issue today. Incursions are only allowed “subject to compliance with guidelines for the protection of scenic, natural, cultural, and recreation resources,” therefore the Secretary will have further involvement before any incursions occur. RMP I-3-30. And finally, this court does not have the benefit of knowing the nature of the incursion or the nature of the water resource, both of which are necessary for an understanding of the what, if any, adverse effects may be caused by an incursion.
Finally, the difference between the special and general management area water resource guidelines does not make this claim ripe. If it were true that the general management area guidelines were more protective than those for the special management area, there would be an argument that the Secretary’s concurrence was irrational. However, that is not the case here. The special and general management areas have different schemes for the protection of water resources. The public interest test does not necessarily make the general management area guidelines more protective. In fact, once the guidelines are implemented, the special management area guidelines may prove to be more protective, even without the public interest test. Nothing in the language of the two sets of guidelines dictates that the general management areas will get more protection. Therefore, the above ripeness concerns are applicable to this challenge as well. Friends of the Gorge is not immediately harmed by the existence of these guidelines. The Secretary will have further involvement in the development of the buffer zones on a case by case basis. And if, in the future, Friends of the Gorge believes that the failure to conduct a public interest test causes a water resource buffer to violate the Scenic Area Act, the hypothetical future court would have the benefit of a specific factual scenario upon which to base a decision.
2. The Secretary’s Concurrence with the Water Resource Buffer Guidelines
The court holds that the Secretary’s concurrence was not arbitrary
and capricious or contrary to law as to claim 2.2. There is evidence in the
record that the Washington Department of Fish and Wildlife, among others,
argued for larger buffer areas. (See Kahn Decl. in Supp. of Mot. for Summ. J. (# 79) at Ex. K.)
However, two Forest Service scientists conducted a “Biological Evaluation of
the Potential Impacts to Sensitive Flora and Fauna” to determine the efficacy
of the chosen buffers and determined that the buffers were sufficient so that
there would be a “‘no effects’ call.” (Defs.’
Reply (# 112) at Ex. F.) “When specialists express
conflicting views, an agency must have discretion to rely on the reasonable
opinions of its own qualified experts even if, as an original matter, a court
might find contrary views more persuasive.” Lands Council, 537 F.3d at
1000 (quoting Marsh,
D. Claim 2.3: Livestock Grazing
In claim 2.3, Friends of the Gorge argues that the RMP provision allowing agricultural uses in the special
management areas as “uses allowed outright” violates the Scenic Area Act by
failing to protect natural resources from the individual and cumulative adverse
effects of livestock grazing.FN10 See RMP
II-7-11. Agricultural uses, including livestock grazing, are allowed within the
special management areas only on land that has been “previously disturbed and
FN10. The Oregon Court of Appeals found for the Secretary on
a similar claim related to the general management areas. Friends
FN11. “Open spaces represent some of the most significant and sensitive resources in the Scenic Area.” RMP II-3-1. The open space designation protects these resources from “uses that could adversely affect them.” RMP II-3-2.
1. Ripeness of the Livestock Grazing Claim
Although livestock grazing is a “use allowed outright,” the parties seem to agree that before it occurs on any federal, state, or county owned land in the special management area, further review will occur. (Summ. J. Hr’g Tr. at 26-29.) This leaves about 8,000 acres, out of 115,000 acres in the special management areas, where immediate grazing might occur without further review. A claim that allowing such grazing fails to protect natural resources from adverse effects seems to be an exercise in speculation. Key questions like how much grazing, on what land, with what sort of adverse effects, are left unanswered. There remains substantial uncertainty, however, about the nature of any subsequent agency review of specific grazing applications, at least on public land. And it appears to be possible that grazing could occur on private land without any further review-albeit only on land that has been previously disturbed. Because the parties were unable to clarify this issue, the court will assume the claim is ripe.
2. The Secretary’s Concurrence with the Livestock Grazing Guidelines
The court holds that the Secretary’s concurrence was not arbitrary and capricious or contrary to law as to claim 2.3. Friends of the Gorge states that “scientific research shows that grazing has a high potential to adversely affect water resources, fish and wildlife habitat, rare plants, and native plant communities.” (Pls.’ Mem. in Supp. of Summ. J. (# 78) at *1274 19 (citing Exs. Q and R).) However, livestock grazing is only allowed on land that has been “regularly worked” and graded, excavated, paved, and/or graveled. See RMP Glossary at 14. It does not appear likely that grazing would be possible on much land meeting this description, or even that rare plants or other wildlife will be found in such an area. Furthermore, a goal of the Scenic Area Act is to “protect and support the economy of the Columbia River Gorge” in a way that is consistent with the “enhancement of the scenic, cultural, recreational, and natural resources” of the Gorge. 16 U.S.C. § 544a. Thus, allowing this very modest economic use of land is in keeping with the purposes of the Act. Considering the goals of the Act and the restrictions on the type of land that can be grazed, the Secretary’s concurrence was not arbitrary and capricious, at least in the abstract sense involved in this facial challenge.
E. Claim 2.4: Replacement of Culverts on Ephemeral Streams
In claim 2.4, Friends of the Gorge claims that the RMP provision allowing the replacement and expansion of
existing culverts for ephemeral streams and ditches in the special management
areas, including areas zoned open space, as “uses allowed outright” violates
the Scenic Area Act by failing to protect natural resources from individual and
cumulative adverse effects.FN12 See RMP
II-7-13 (all land use designations except open space and agricultural-special),
-17 (areas designated open space). The visible ends of the new culverts are
required to be “dark and non-reflective.”
FN12. The Oregon Court of Appeals found for the
Secretary on a similar claim related to the general management areas. Friends of the
1. Ripeness of the Culvert Replacement Claim
Like livestock grazing, culvert replacement on ephemeral streams seems to be very limited in scope, but the record is unclear as to whether any meaningful administrative action will occur before a specific culvert is replaced. The challenged provision is limited in scope because it allows only for replacing culverts, not the building of new culverts, and only in ephemeral streams. Some further review appears to be necessary, at least at the county level, because county, state, and federal regulations as to air and water quality must be followed in all actions taken in the special management areas. See RMP I-3-31. Permits are probably necessary for construction on federal, state, or county land and may be necessary on private land, depending on county ordinances not before the court. However, the permitting processes, even those on federal land, would not necessarily take into account the concerns of the Scenic Area Act in protecting the scenic, natural, and cultural resources of the Gorge. It is worth comparing this action with an action challenging replacement of a culvert on a perennial stream-a portion of the RMP not challenged by Friends of the Gorge. In such a hypothetical future case, the reviewing court would know which culvert *1275 was at issue, on what sort of land, having what sort of alleged impacts. None of those questions are answered here.
As with the livestock grazing claim, the court has serious concerns regarding the ripeness of this claim because further factual development would be helpful to determine whether the regulations in the RMP allow adverse effects in the Scenic Area. Any hardship to the Friends of the Gorge results only from a chain of hypothetical events that the court cannot know will happen because it is possible that culverts can and will be replaced without creating the relevant adverse effects. But because the record is not clear as to the nature or even the availability of any subsequent administrative review, the court will assume ripeness.
2. The Secretary’s Concurrence with the Culvert Replacement Guidelines
The court holds that the Secretary’s concurrence was not arbitrary and capricious or contrary to law as to claim 2.4. The RMP requires that all county, state, and federal regulations for air or water quality be followed at all times within the special management areas. See RMP I3-31. Therefore, culverts cannot be replaced if the replacement would cause the water quality of the ephemeral stream, ditch, or other water source, to fall below the relevant standards. Because of the ratio of public to private land, in almost all imaginable cases ensuring the maintenance of water quality would be the subject of some permitting process.
Further, culverts in ephemeral streams and ditches are in
locations that have already been disturbed by building the road, digging the
ditch, and placing the original culvert. The Secretary also notes that failing
to replace an undersized culvert can cause extensive resource damage. (Defs.’ Mem. in
Supp. of Summ. J. (# 92) at 39.)
Taking these factors into account, the Secretary’s explanation does not run “counter to the
evidence” and his concurrence is not arbitrary and capricious or contrary to
law. See Motor Vehicle Mfrs., 463
F. Claim 3
Friends of the Gorge appears to have dropped this claim as it is not discussed in the pleadings.
G. Claim 4:
In claim four, Friends of the Gorge argues that the RMP’s special management area forest practices policies and guidelines violate the Scenic Area Act because they fail to ensure that forest practices in the special management areas will not adversely affect the scenic and natural resources of the Scenic Area. See RMP II-2-16-27.
The RMP contains new rules allowing
“vegetation management” to promote “forest health,” subject to review for
compliance with scenic, cultural, natural, and recreational resources
guidelines, see RMP at II-3-12, and deviations
from forest practices guidelines to promote “forest health” and “ecosystem
function,” see, e.g., RMP at II-2-25, -26. “
holds that claim four is not ripe. This claim is almost identical to the
question before the Supreme Court in
Secretary’s Concurrence with the
The court holds that the Secretary’s concurrence was not arbitrary
and capricious or contrary to law as to claim four. The management plan
guidelines direct the Forest Service to review a site plan for all special
management area forest practices for compliance with the RMP
regarding protection of scenic, natural, and cultural resources. RMP II-2-16.
To aid in the required review, the RMP contains
quantitative metrics for use in designing treatments so as to achieve the
desired forest structure and pattern. RMP II-2-27. Further, the Secretary argues that the definition
of “forest health” must be somewhat elastic because all forest stands are
different. (Defs.’ Mem. in Supp. of Summ. J. (# 92) at 40.) Finally, Congress delegated development of
the management plan to the Commission, Secretary, and Forest Service, and the Forest Service has
significant expertise in the area of forest practices, therefore deference to
the agency’s opinion is appropriate. See Chevron, 467
H. Claim 5: Recreation Guidelines
In claim five, Friends of the Gorge argues that the special management area Recreation Intensity Class 2 guidelines violate the Scenic Area Act by allowing recreational vehicle campgrounds in special management area Recreation Intensity Class 2 zones, thereby failing to protect recreation resources on lands zoned for semi-primitive use. See RMP I-4-27. The RMP designates Recreational Intensity Classes (“RICs”) for land throughout the Scenic Area and the RIC level dictates the scope and intensity of allowed recreational uses. RIC 2 areas are restricted to “low intensity” uses, where “the emphasis is to provide opportunities for semi-primitive recreation,” where people can “escape from noise and crowds.” RMP I-4-27. “Semi-primitive” recreation opportunities are defined as “[a]reas accessible only by primitive transportation routes, with low to moderately infrequent human encounters and with only subtle modifications to the natural setting.” RMP Glossary at 15.
In the general management areas, regulations of RIC 2 areas limit campgrounds to tents only and allow only cars, not “vehicles,” which might include recreational vehicles. RMP I-4-17. In the special management areas, regulations of RIC 2 areas allow for “vehicles,” not just cars. RMP I-4-27. Friends of the Gorge argues that the special management area guidelines violate the Scenic Area Act because they adversely affect recreation resources, are inconsistent with the RMP definition of RIC 2 areas, and are less protective than the guidelines for the general management areas. (Pls.’ Mem. in Supp. of Summ. J. (# 78) at 24-26.)
*1277 1. Ripeness of the Recreation Guidelines Claim
The court holds that claim five is not ripe. First, the court
would benefit from further factual development because it is impossible to know
today whether the use of the word “vehicle” will adversely affect recreation
resources in violation of the Scenic Area Act. Second, further review will
occur before any potential for injury to Friends of the Gorge. The development
of new and the retrofitting of current recreation areas is done by county,
state, and federal agencies.
In implementing the RMP, those agencies could choose
to further refine the regulations, as was the case in
2. The Secretary’s Concurrence with the Recreation Guidelines
The court holds that the Secretary’s concurrence was not arbitrary and capricious or contrary to law as to claim five. There is no evidence in the record that the use of the word vehicle will adversely affect recreation resources in violation of the Scenic Area Act. In the absence of such evidence, the Secretary’s concurrence was not arbitrary and capricious. The second argument appears to arise out of a disagreement over the definition of terms used in the RMP, specifically “semi-primitive recreation.” Internally inconsistent definitions within the RMP would be evidence that the Secretary had acted in an arbitrary and capricious manner. However, an “emphasis [on providing] opportunities for semi-primitive recreation” does not so limit the Secretary that allowing recreational vehicles is inconsistent with the definition of a RIC 2 zone. RMP I-4-27 (emphasis added). Finally, although it would be logical for the RIC 2 areas to have similar guidelines for general and special management areas, it does not follow that it is arbitrary and capricious for the guidelines to have minor differences in wording. Because there is no evidence that the use of the term “vehicle” will cause special management area RIC 2 zones to be less protected than those in the general management areas, the Secretary’s concurrence was not arbitrary and capricious or contrary to law.
I. Claim 7: New Dwellings
In claim seven, Friends of the Gorge argues that the RMP violates the Scenic Area Act by allowing new dwellings
on parcels smaller than forty acres in the special management areas. The Scenic
Area Act requires that the management plan “prohibit major development actions in
special management areas,” except for certain exceptions not applicable to this
case. 16 U.S.C. § 544d(d)(5).
“Major development actions” are defined as, among other things, “permits for siting or construction within a special management area of
any residence or other related major structure on any parcel of land less than
forty acres in size.”
Friends of the Gorge points to three places where the RMP allegedly violates this provision of the Scenic Area Act. First, new single-family dwellings are allowed on any legally created lot, with no *1278 mention of parcel size. RMP II-4-11. Second, construction of “new dwelling units” is allowed at Rowena Dell, even though many of the lots are under forty acres. RMP II-4-10. Third, the forty-acre minimum parcel size is not incorporated in a guideline allowing the construction of farm-labor dwellings. RMP II-1-23 to -24.
1. Ripeness of the New Dwellings Claim
The court holds that the claim is ripe as to the Rowena Dell guideline and not ripe as to the single-family and farm-labor dwelling guidelines. Applications for development must be reviewed by county agencies before any building may occur. There is no way to know whether the agencies will allow building to occur on parcels that are less than forty acres, outside of Rowena Dell. Friends of the Gorge argues that because counties generally draft their ordinances based on the management plan, if the management plan is not specific regarding the limitation it will not be incorporated in the agency’s decision making process. (Pls.’ Reply (# 98) at 42.) However, a ripeness analysis does not ask the court to guess at how likely a result will be, rather it asks whether review at a later time is more appropriate. In this case, Friends of the Gorge can bring suit if and when a county approves plans to construct a single-family or farm-labor dwelling on a lot that is less than forty acres. The question of Rowena Dell is different because the parcels have already been created and the RMP specifically allows development, therefore the counties would be in violation of the management plan if they refused to allow construction on the Rowena Dell lots.
2. The Secretary’s Concurrence with the New Dwellings Guidelines
The court holds that the Secretary’s concurrence was contrary to
law as to the Rowena Dell guideline. The Secretary argues that allowing
building on less than forty acres is a “reasonable accommodation of the other
purposes” of the Scenic Area Act, namely that the Act should protect and support
the economy of the Gorge and the agricultural lands for agricultural uses, see
16 U.S.C. § 544a, particularly as to Rowena Dell,
which was approved before the Scenic Area Act was passed. (Defs.’ Mem. in Supp. of Summ.
J. (# 92) at 43.) He argues that his interpretation of
the statute should receive deference in the absence of a manifest “plain
meaning” of the statute. (Defs.
in Supp. of Summ. J. (# 92)
at 43 (citing United States v. Mead Corp., 533
The court holds that the Scenic Area Act’s ban on major
development actions is plain and unambiguous. Specifically, the prohibition
against residences on “less than forty acres” is about as unambiguous as a
statute can get. The Secretary’s contrary interpretation is not entitled to deference.
See Chevron, 467
J. Claim 8: Expansion of Commercial and Multifamily Uses
In claim eight, Friends of the Gorge argues that the RMP provision allowing *1279 expansion of existing
commercial and multifamily residential uses in the special management areas, see
RMP II-7-8, violates the Scenic Area Act because the
provision allows major development actions, which are expressly prohibited by
the Act.FN13 As discussed above, the Act prohibits major
development actions in the special management areas. See 16 U.S.C. § 544d(d)(5). “Major
development actions” include, “any permit for siting
or construction outside urban areas of multifamily residential, industrial or
commercial facilities, except such facilities as are included in the recreation
FN13. The Oregon Court of Appeals found for
Friends of the Gorge on a similar claim related to the general management
areas. Friends of the
The RMP allows existing commercial and multifamily residential uses in the special management areas to “expand as necessary for successful operation on the dedicated site.” RMP II-7-8. The “dedicated site” is defined as the “area actively devoted to the current use and as delineated on the site plan.” RMP Glossary at 6. Friends of the Gorge states that because the dedicated site plan can be larger than the area currently covered by the structure, the RMP guideline allows “construction” of commercial and multifamily residential facilities. (Pls.’ Mem. in Supp. of Summ. J. (# 78) at 28.) The Secretary contends that allowing expansion of the applicable existing uses under narrowly tailored conditions is a reasonable interpretation of the Scenic Area Act. (Defs.’ Mem. in Supp. of Summ. J. (# 92) at 44.)
1. Ripeness of the Expansion of Commercial and Multifamily Uses Claim
The court holds that claim eight is ripe. As with the Rowena Dell portion of claim seven, Friends of the Gorge’s claim here requires only that the court look at the language of the RMP and the language of the Scenic Area Act to determine whether there has been a violation. No further factual development is necessary. It is not necessary, for example, to know which particular site is being developed, with what sort of business. Nor is it merely speculative whether a county would approve such a project, because the county must conform to the requirements of the RMP.
2. The Secretary’s Concurrence with the Commercial and Multifamily Uses Guidelines
The court holds that the Secretary’s concurrence was contrary to
law as to claim eight. The Secretary argues that the guideline is a reasonable
interpretation of the Scenic Area Act, which accommodates existing uses, and
that this court should defer to the Secretary’s reasonable interpretation. (Defs.’ Mem. in
Supp. of Summ. J. (# 92) at 44.)
However, as discussed in relation to claim seven, Congress was clear in the
Scenic Area Act that major development actions, as defined, are prohibited in special management
areas. The Secretary is not entitled to deference in interpreting a plain and
unambiguous statutory provision. See Chevron, 467
*1280 III. The Secretary’s Motion for a Stay
The court denies the Secretary’s motion for a stay pending the
decision of the Oregon Supreme Court in the appeal taken from the Oregon Court of Appeals
decision, Friends of the Columbia Gorge, Inc. v. Columbia River Gorge
Commission, 215 Or.App. 557,
171 P.3d 942 (2007). The Oregon Court of Appeals has stated that
Based on the foregoing, Friends of the Gorge’s Motion for Summary Judgment (# 76) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to Rowena Dell in claim seven and as to claim eight and DENIED as to the remainder of claim seven and as to claims one through six. The Secretary’s Cross-Motion (# 91) is therefore GRANTED IN PART and DENIED IN PART. The motion is DENIED as to Rowena Dell in claim seven and as to claim eight and GRANTED as to the remainder of claim seven and as to claims one through six. The Secretary’s Motion for a Stay (# 97) is DENIED.