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Judge Denies Gravel Mine's Motion to Stay Enforcement of Scenic Area Rules

Judge Denies Gravel Mine's Motion to Stay Enforcement of Scenic Area Rules
Aerial view of the Zimmerly mining site inside the western National Scenic Area boundary near Washougal, WA. (photo: Friends' archive)
By Nathan Baker
Senior Staff Attorney
January 15, 2020

The latest episode in the ongoing saga over an illegal gravel mining operation in the western Columbia River Gorge National Scenic Area came on January 14, as Judge John P. Fairgrieve of the Clark County Superior Court issued an opinion denying a motion filed by Judith Zimmerly and the Nutter Corporation, the respective owner and operator of the illegal mine. Zimmerly and Nutter filed the motion in November as part of their appeal of the Columbia River Gorge Commission's October 16 written order determining that the mining activities on the property lack the required Scenic Area permits, are not legally existing uses, and are land use violations. In their motion, Zimmerly and Nutter sought to block Clark County and the Gorge Commission from enforcing the National Scenic Area rules and other legal requirements.

Zimmerly and Nutter have repeatedly failed in their efforts to get their illegal mine declared legal. (Below is a full list of the many instances where Zimmerly and Nutter have lost.) However, despite their repeated failures on the merits, they have succeeded at one thing: delaying the inevitable shutdown of their illegal mining activities. Meanwhile, the violations continue.

Now that Judge Fairgrieve has denied Zimmerly’s and Nutter’s latest motion, this completely clears the way for enforcement of the National Scenic Area rules, Clark County’s surface mining rules, and other authorities. We call on Clark County Code Administration Director Mitch Nickolds and Gorge Commission Executive Director Krystyna Wolniakowski to stop the ongoing violations and enforce the law.
 

Zimmerly mine decision timeline

  • October 2017 - Twenty years after all previous mining activities on the property had ceased, Nutter and Zimmerly initiated mining activities on the property without first obtaining the required land use approvals (e.g., National Scenic Area, surface mining, and conditional use approvals) from Clark County.
  • December 14, 2017 - Clark County wrote to Zimmerly and Nutter notifying them that rock crushing was not allowed at the site without National Scenic Area review and a conditional use permit, and directing them to apply for permits within 30 days. Zimmerly and Nutter failed to comply.
  • January 24, 2018 - Clark County ordered Zimmerly and Nutter to “cease mining operations immediately”: “In effect, there is not currently a permit or approval to allow mining or similar activities, save reclamation, to continue. Until you can produce the required permits or approvals, or obtain them, you are ordered to cease mining operations immediately. Failure to do so will result in further code enforcement proceedings to include issuing daily penalties.”
  • March 29, 2018 - Clark County issued an Enforcement Notice and Order: “YOU ARE HEREBY ORDERED TO CEASE ALL MINING ACTIVITIES WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE AND ORDER.”
  • April 17, 2018 - The Gorge Commission's Executive Director wrote to Clark County that "I understand that the mine continues to operate and haul rock. This is a very serious violation."
  • April 19, 2018 - Gorge Commission and Clark County officials inspected the unpermitted mine and orally ordered representatives for Zimmerly and Nutter to immediately cease all operations.  
  • May 17, 2018 - Clark County issued an Amended Enforcement Notice and Order: “YOU ARE HEREBY ORDERED TO CEASE ALL UNPERMITTED MINING ACTIVITIES WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE AND ORDER, AND ARE FURTHER ORDERED TO OBTAIN ALL REQUIRED PERMITS AND APPROVALS PRIOR TO COMMENCEMENT OF ANY MINING OPERATIONS.”
  • July 16, 2018 - The Clark County Hearing Examiner denied a motion filed by Zimmerly and Nutter to continue (delay) the hearing on their violations.
  • August 4, 2018 - The Clark County Hearing Examiner held that the rock crushing activities and the underground construction of power lines on the property occurred without the required permits and therefore were violations.
  • April 8, 2019 - Clark County denied a request by Zimmerly and Nutter to conduct rock crushing on the property as a temporary "demonstration project."
  • April 9, 2019 - The Columbia River Gorge Commission orally denied a motion filed by Zimmerly and Nutter to dismiss appeals filed by Friends of the Columbia Gorge and several neighbors of the Zimmerly property.
  • August 19, 2019 - Clark County Superior Court Judge Gregory Gonzales issued a written order denying a motion filed by Zimmerly and Nutter to stay the Gorge Commission appeal proceedings.
  • August 13, 2019 - The Gorge Commission issued an oral decision that the mining activities on the Zimmerly property lack the required Scenic Area permits, are not legally existing uses, and are land use violations.
  • September 10, 2019 - Clark County notified Zimmerly that the County "expects [you] to immediately comply with Clark County's Code" and requiring Zimmerly to submit a complete permit application within 30 days.
  • October 16, 2019 - The Gorge Commission issued a final written order reiterating the Commission's August 13, 2019 oral decision and expressly affirming Clark County’s May 17, 2018 Amended Enforcement Order.
  • October 17, 2019 - Clark County again wrote to Zimmerly and Nutter, requiring them to "immediately cease all unpermitted mining activity at the Washougal Pit, and obtain all required permits and approval[s] prior to resuming any mining operations."
  • January 14, 2020 - Clark County Superior Court Judge John Fairgrieve issued a memorandum opinion denying Zimmerly's and Nutter's motion to stay enforcement of the Gorge Commission and Clark County orders.

This article was updated on Jan. 22, 2020.


Additional resources

Zimmerly Quarry
Gorge Panel Rules Mine Operation Illegal (Nov. 25, 2019)
Unpermitted Activity Alleged at Washougal Pit (The Columbian, Oct. 8, 2019)
Update on the Zimmerly Quarry (Aug. 22, 2019)
Gorge Commission Rejects Mining Operation Within Scenic Area (Oregon Public Broadcasting, Aug. 13, 2019)
Residents Say Columbia Gorge Mine Violates Scenic Area Act (Oregon Public Broadcasting, Aug. 9, 2019)