By Kelly Moyer, Camas-Washougal Post-Record
(View original article)

Almost exactly one year after a Clark County hearings examiner OK’d mining on a Washougal rock pit located inside the Columbia River Gorge National Scenic Area, a group of commissioners charged with protecting the Gorge have reversed that decision.

At a Columbia River Gorge Commission hearing held Aug. 13, 10 of the 11 commissioners voted to reverse the August 2018 decision by Clark County Hearings Examiner Joe Turner that allowed mining at the Washougal Rock Pit.

The mining site, located off Southeast 356th Avenue in Washougal, is owned by Judith Zimmerly, of Ridgefield, and currently being mined by the Vancouver-based Nutter Corporation.

The Washougal mine has long been a source of controversy to nearby neighbors and the environmental stewardship group, Friends of the Columbia Gorge. In the 1990s, the Washington Department of Ecology fined the mine’s owners and operators close to $200,000 after the mine’s settling ponds overflowed, dumping millions of gallons of sediment-laden runoff into the environmentally sensitive Gibbons Creek and Steigerwald Lake National Wildlife Refuge.

Nathan Baker, the Friends’ senior attorney, called that incident “a major environmental disaster,” and said operations at the Washougal mine died down after that.

“There were probably five companies that leased (the mine) between 1997 and 2017, but most didn’t do any mining,” Baker told the Post-Record in 2018.

The Nutter Corporation took over the lease in 2017 and the mining restarted.

Immediately, Washougal neighbors and the Friends group became concerned by what they said were at least 200 trucks a day spewing gravel and making lots of noise as they drove away from the mine all day and evening, heading down Southeast 356th Avenue onto Evergreen Highway.

In July 2018, one of those trucks — packed down with rocks and gravel — lost control and crashed onto railroad tracks across Evergreen Highway.

By that point, however, Baker said, the mine’s owners and operators had already violated four county notifications telling them they were illegally mining at the site.

A January 2018 order by then-director of Clark County’s community development division, Marty Snell, warned Zimmerly and Nutter that Snell’s office had concluded the mine had “no valid (Gorge Commission) permit to operate the quarry and … no conditional use permit to allow rock crushing or other activities within the quarry.”

A March 2018 letter signed by Snell as well as Clark County Code Enforcement Coordinator Kevin Pridemore told Zimmerly and Nutter: “You are hereby ordered to cease all mining activities within 10 days from the date of this notice and order.”

Still, according to Baker and several neighbors monitoring the mine’s activities, operations at the Washougal Rock Pit continued.

The issue came before Turner, the county’s hearings examiner, in the summer of 2018. Turner ruled on Aug. 7, 2018, that the mining operations at the rock pit had not violated the county’s land-use laws, but that rock-crushing activities on the site must cease immediately.

Attorneys for concerned neighbors and the Friends group argued that the Washougal Rock Pit’s land-use permit — issued in 1993 and required by the Gorge Commission — specifically stated that, if development, including mining, on the site ceased for one or more years, the permit would be voided.

Turner put that issue back in the Gorge Commission’s court.

On Aug. 13, the commission reversed Turner’s decision and said mining was not a legal use at the Washougal Rock Pit under county code.

Baker had asked the commissioners to require Zimmerly and Nutter to file a land-use application for a Scenic Area Permit for mining and, in the meantime, to issue an injunction prohibiting mining activity. The Friends’ attorney also asked for an “after the fact” review of the mining activities that have taken place since 2017.

The immediate injunction prohibiting mining was critical, Baker told the commissioners on Aug. 13.

“We fully expect that, if there is not an injunction, Zimmerly and Nutter will continue to violate as they have done for nearly two years,” Baker said.

After the commissioners failed to issue an immediate injunction against mining, Commissioner Bowen Blair said he wanted assurance from Gorge Commission staff that steps would be taken to stop the mining.

“So, now we have the situation with up to 200 trucks going down this road every day. … So I guess I’m looking to staff at this point now that we’re outside of the appeal process to let us know what the next steps are for trying to stop this mining,” Blair said. “As I understand it, our executive director already said that it violates the (National Scenic Area) Act. We’ve got Clark County saying it violates the Act. The trucks are rolling so what’s our next step?”

To that, the Gorge Commission’s executive director, Krystyna Wolniakowski, replied: “Lunch.”

After the commissioners and staff took their lunch break, Blair again pressed Wolniakowski for an answer.

“We have all spent a lot of time on this today and over the course of the past few weeks or so. I’m coming at this with a sense of real frustration when I look through the record and I hear from the neighbors and I’ve read their affidavits where we’ve made the decision … yet we still get 200 trucks per day running down this road,” Blair said. “I think our credibility is at stake.”

Saying he wanted more than a list of steps staff recommended taking, Blair continued to press the Gorge Commission’s director.

“I’m looking for some sense of assurance that this is at the top of the staff’s list to deal with and to make sure that we have an application or a permit if mining is going to continue,” Blair said.

“I think we had a very fair and thoughtful process this morning. It’s something that I know a lot of people have worked really hard on all sides to see this come to fruition today and to prepare the most amount of information to help the commission make a decision,” Wolniakowski replied. “And you have made a decision and now the staff needs to confer immediately. It is our highest priority to determine what is within our jurisdiction to do next. We will be able to speak to that in a few days. So we make a commitment now that a decision has been made to move forward with what’s really in the best interest of the Gorge Commission the National Scenic Area and try to figure out the permit issue in Clark County and so on. We will definitely make it our top priority.”

One week later, Baker said there was still activity at the Washougal mine and that the Gorge Commission’s executive director had not taken any action to prevent illegal mining at the site.

“They are already violating (the Gorge Commission’s decision),” Baker said of the mine’s owners and operators. “One of the neighbors counted a number of trucks coming and going … on Friday, Aug. 16, three days after the hearing.”

Baker, as well as some of the Washougal neighbors living near the rock pit, said they believe the mine’s owners and operators are going to continue to violate the law until they receive a stop-work order listing potential violations, which could cost up to $10,000 a day.

“We prevailed in our hearing with the Gorge Commission. That felt good, but we know there is still a long road ahead,” Sean Streeter, a Washougal resident who has been closely following the activity at the Washougal Rock Pit near his home since mining resumed in 2017, told the Post-Record last week.

Streeter added, however, that he did not believe the Commission’s decision would stop the mine’s owners or operators from continuing their mining operations.

“I think now that this decision has occurred, they are going to run the mine as hard as they can until litigation forces a shutdown,” Streeter said.

Baker said he believes Wolniakowski has the sole authority to issue a stop-work order, and cited a Gorge Commission rule that states: “Where an imminent threat exists to resources protected under the law and/or to public health, safety or welfare, the Director may issue a summary order requiring the alleged violator to promptly stop work or take other necessary action.”

“It’s in (Wolniakowski’s) hands,” Baker said Tuesday. “She has the power to issue a stop-work order, stopping unlawful mining and related activities today. … But it’s been a week and we have yet to hear anything from her. She has yet to state what actions she will take.”

Wolniakowski told the Post-Record she disagrees with Baker’s assessment of her powers, and said the Gorge Commission’s decision put the ball back into Clark County’s court.

“I talked with Clark County yesterday and they assured me that they’re talking to the mining company to get them into compliance,” Wolniakowski said Tuesday evening.

She added that mining is still a permitted use within the National Scenic Area, and said the county would work with Zimmerly and Nutter to apply for a land-use permit.

“It’s not illegal to mine,” Wolniakowski said. “It is a violation to mine without a permit.”

“We followed our process as a neutral appellate court. We heard the appeals, which is what we’re supposed to do,” Wolniakowski added. “The Commission found there were errors in the hearings examiner’s information and reversed (the hearings examiner’s decision). … So my top priority was to talk to Clark County and, as far as I understand, the land owner has been in to talk to the county about a permit.”

Asked about potential fines for the alleged violations — including rock-crushing after that activity was deemed illegal and mining without a valid permit and in the face of the county’s orders to cease mining operations — Wolniakowski said that would also be up to the county.

At the Aug. 13 hearing, Baker addressed sending the issue back to the county. He agreed that Zimmerly and Nutter need to file a land-use application for a valid permit, but said an injunction prohibiting mining activity should be issued — by the Gorge Commission or Wolniakowski, not the county — in the meantime.

“Without it, we will have won the battle but lost the war,” Baker said.

If left up to the county, Baker said, he believed it would be months before the mining violations ceased on the Washougal site.

“We need the injunction today,” he said.