The Gorge Commissioners heard oral arguments in an appeal of a decision made in August 2018 by a Clark County hearing examiner, who held that mining on the Zimmerly property by the Nutter Corporation might be allowed under a permit issued by the Gorge Commission's executive director in 1993, but that he lacked jurisdiction to determine whether the 1993 permit was still in effect. In appealing the hearing examiner's decision, Friends of the Columbia Gorge and the neighboring property owners argued that the 1993 permit was voided when mining was discontinued for nearly twenty years (from 1997 to 2017).
For the past ten months, Zimmerly and Nutter fought unsuccessfully before the Gorge Commission and in Clark County Superior Court to get the appeals dismissed on jurisdictional grounds, setting the stage for this month's hearing in The Dalles.
Since the unpermitted mining began in October 2017, the Gorge Commission staff have failed to fulfill their enforcement responsibilities by issuing a stop-work order, shutting down the illegal mining, and requiring Scenic Area review for the mining activities that have taken place without a permit.
Leading up to the Aug. 13 hearing, Friends' conservation director Michael Lang said: "Due to a recent lack of enforcement by Gorge Commission staff, citizens have been forced to defend the Gorge and their property rights by appealing county decisions. For nearly two years now, countless members of the community have asked the Gorge Commission to take action. On Aug. 13 the Gorge Commission will have a choice: confirm that the mine is illegal and order it to shut down, or send the message that our national scenic treasure is now open to illegal mining and development."
What happened at the hearing in front of the Gorge CommissionYou can view Friends' Facebook Live stream of the hearing, or listen to audio provided by the Gorge Commission (clips 1-5, plus the beginning of clip 6).
I presented arguments for Friends, while attorney Gary Kahn represented the Washougal neighbors. Eleven Gorge Commissioners participated in the hearing.
The Gorge Commissioners voted on four motions. Three of the four motions passed.
- Motion One: The Commissoners voted 10-1 to reverse the Clark County hearing examiner's ruling that mining on the property is a legally existing use under the Clark County National Scenic Area ordinance. Thus, all mining on the property, in the absence of a new Scenic Area permit, is illegal.
- Motion Two: By an 11-0 vote, the Commissioners remanded back to the hearing examiner his finding that “the mined land on the Property has not been reclaimed naturally or artificially to a point where it is revegetated to fifty percent (50%) of its original cover (considering both basal and canopy) nor has it reverted to another beneficial use, such as grazing." The Commission noted the hearing examiner’s other finding that from 2005 to 2015, a time when mining had ceased on the property, “the stockpiles and disturbed areas had revegetated with voluntary trees and grasses.” If, during that time period, the revegetation was more than 50%, then the mining also lost its status as a legally existing use under another provision of the Scenic Area ordinance.
- Motion Three: The Commissioners ruled by a 10-1 vote that the hearing examiner had erred when he concluded that he lacked jurisdiction to determine whether the 1993 Gorge Commission is still in effect. The hearing examiner ruled that his jurisdiction is limited to application of the Clark County Code, and that the Gorge Commission has its own independent authority to enforce its regulations if it determines that the 1993 approval is no longer in effect. The Commission held that the examiner's conclusions about his jurisdiction were in error, and noted that the cited sections of the Clark County Code do not limit the examiner’s jurisdiction in the ways he stated.
- Motion Four: By an 8-3 vote, the Commissioners denied a motion that would have held that Friends and the neighbors were entitled to be parties during the appeal proceedings before the Clark County Hearing Examiner. The result of this motion is that if and when the appeals again reach the hearing examiner on remand, Friends and the neighbors will not be allowed to directly participate.
Next stepsThe Gorge Commissioners have 90 days from last week’s hearing to issue their final written opinion and order.
Meanwhile, the violations on this property continue. Unfortunately, the Gorge Commission staff are still not enforcing the Scenic Area rules to stop the violations. Friends and the neighbors are evaluating our available legal remedies to ensure proper enforcement by the Commission staff and by Clark County.