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Washington Supreme Court Tells Mining Violators to Pound Sand

Washington Supreme Court Tells Mining Violators to Pound Sand
By Nathan Baker
Senior Staff Attorney

September 28, 2023

On September 6, 2023, the Washington Supreme Court denied a petition for review filed by the owners and operators of an illegal sand and gravel mining operation in the Columbia River Gorge National Scenic Area, deciding not to hear their case and thereby rejecting their arguments once and for all that they have a “vested right” to mine the property with no land use permits.

However, while this ends the enforcement phase of the litigation over what became the largest and longest-running violation in the history of the National Scenic Area, a new phase of the litigation continues.

Five Years of Litigation

For more than five years, mining violators Nutter Corporation, Jerry Nutter, and Judith Zimmerly pursued a seemingly never-ending stream of litigation before two administrative agencies, three state superior court judges, three state court of appeals judges, a federal judge, and ultimately five state supreme court justices, filing numerous lawsuits, motions for reconsideration, and appeals, and losing all but one of them. They also defiantly mined the property for two and a half years during that period, disobeying multiple government enforcement orders.

Friends of the Columbia Gorge has actively participated in every step of the litigation, securing victory after victory against the mining violators. In 2023 alone, Friends has prevailed against Zimmerly and Nutter in eleven out of eleven cases, appeals, and motions for reconsideration.

Zimmerly Illegal Mining Site

Friends Emerges Victorious

In their petition for review at the supreme court, Zimmerly and Nutter radically changed their theory of the case, raising multiple new arguments for the first time on appeal—a now-familiar tactic they have employed in nearly every brief they have filed for years. 

The Building Industry Association of Washington also weighed in, urging the supreme court to take the case because the building industry would like to obtain residential construction permits more quickly. In response, Friends explained that those issues had absolutely nothing to do with this case.

Ultimately, Chief Justice González, Associate Chief Justice Johnson, and Justices Madsen, Stephens, and Yu unanimously agreed not to review the Washington Court of Appeals decision. Later, the supreme court awarded prevailing party fees to Friends and the neighbors of the Zimmerly property, acknowledging that we have emerged victorious after five long years of litigation at five levels of appeal.

The Next Litigation Phase

Now, the next phase of litigation involving the Zimmerly property proceeds.

This summer, Clark County Land Use Hearing Examiner Joe Turner denied a land use application for mining on the property filed by Zimmerly’s attorney, and held that an environmental impact statement must be prepared before any mining may occur in the future.

Zimmerly and Nutter have attempted to appeal the hearing examiner’s decision in the Clark County Superior Court, but in the process they are attempting to bypass the Columbia River Gorge Commission, where appeals over National Scenic Area land use disputes must go first. Friends has filed a motion to dismiss Zimmerly and Nutter’s attempted appeal.  

Meanwhile, Friends and the neighbors filed our own appeal to the Gorge Commission in order to fix errors in the hearing examiner’s decision, including an incorrect ruling that Zimmerly is not required to obtain after-the-fact permits for the prior construction of drainage ditches on the property even though Zimmerly already agreed to do exactly that. Our appeal will likely be heard by the Gorge Commission in 2024.

Washington Supreme Court Decision Against Zimmerly and Nutter
Chief Justice González, Associate Chief Justice Johnson, and Justices Madsen, Stephens, and Yu (Sept. 6, 2023)

Washington Court of Appeals Decision Against Zimmerly and Nutter
Chief Judge Rebecca Glasgow and Judges Ian S. Birk and Meng Li Che, Washington Court of Appeals, Division II (Apr. 4, 2023)

Clark County Land Use Hearing Examiner Decision Against Zimmerly and Nutter
Hearing Examiner Joe Turner (Aug. 4, 2023)


Support Friends' Legal Work

Friends of the Columbia Gorge and the neighbors of the Zimmerly property have been represented in the various Zimmerly mining cases and appeals by Nathan Baker of 
Friends of the Columbia Gorge; Jeffrey S. Myers of Law, Lyman, Daniel, Kamerrer & Bogdanovich, P.S.; Bryan Telegin of Telegin Law PLLC; Gary Kahn, Peggy Hennessy, and Tiffany Elkins of Reeves, Kahn, Hennessy & Elkins; Brian A. Knutsen and Emma Bruden of Kampmeier & Knutsen PLLC; and Audrey Clungeon of Bricklin & Newman LLP, with litigation support from Steve McCoy, Hank Shell, Georgia Davis, and Casey Hellman of Friends of the Columbia Gorge; Dave Becker of the Law Office of David H. Becker, LLC; and Eric Kloster.