County's project denial follows trifecta of court losses for serial mining violators

WASHOUGAL, WA – On Thursday, June 8, 2023, Clark County Land Use Hearing Examiner Joe Turner issued a 72-page decision denying a land use application seeking permission for gravel mining operations in the Columbia River Gorge National Scenic Area, adjacent to the Steigerwald Lake National Wildlife Refuge and near the Columbia River Gorge Elementary School and Jemtegaard Middle School.

The land use application, filed by attorney James D. “Jamie” Howsley of the Jordan Ramis law firm, had been pending for more than three years and sought permission for surface mining and rock crushing activities on a site owned by the Zimmerly family at 6303 SE 356th Avenue, where the Nutter Corporation illegally conducted mining operations without required land use permits from 2017 through 2020.

Turner’s decision follows a trifecta of major losses by Zimmerly and Nutter in three different courts in late March and early April 2023, rejecting their persistent efforts to mine the property without land use permits.

For more than five years, Friends of the Columbia Gorge, alongside numerous Clark County citizens and landowners, has opposed Zimmerly and Nutter in the many lawsuits and other legal challenges they have filed in their efforts to mine the site. In these cases, Friends helped ensure the proper enforcement of the Columbia River Gorge National Scenic Area Act, the State Environmental Policy Act (SEPA), and other laws and rules.

Speaking about the illegal mining and related litigation, Friends senior staff attorney Nathan Baker said, “The illegal mining on the Zimmerly property has been the largest and longest-running land use violation in the history of the National Scenic Area. Both Zimmerly and Nutter have egregious track records of willfully violating land use laws and harming the environment. The Columbia River Gorge is a national treasure that deserves to be protected from such bad actors.”

During their illegal mining operations that began in late 2017, Zimmerly and Nutter continually defied and ignored numerous orders by government officials to stop mining the site without land use permits. In early 2020, Mr. Howsley filed a land use application “under protest,” seeking retroactive approval of the past unpermitted mining operations that took place for more than two years on the approximately 122-acre site, as well as permits to conduct future mining operations on the property, including excavation, rock crushing and processing, and truck hauling.

Meanwhile, Zimmerly and Nutter have continued to litigate, filing numerous court cases and appeals in state superior court, federal district court, and the Washington state appellate courts. To date, Zimmerly and Nutter have lost all of their court cases, in addition to today’s loss at Clark County and their prior losses at the Columbia River Gorge Commission.

In today’s decision, Hearing Examiner Joe Turner made three major rulings:

1. The land use application is incomplete under the National Scenic Area rules.
2. The proposal to operate a mining “haul road” in a residential area is prohibited by National Scenic Area zoning.
3. This project cannot proceed without an environmental impact statement to evaluate its likely significant adverse impacts to the environment and Washougal community.

Accordingly, Mr. Turner, acting on behalf of Clark County, denied the application.

“The illegal mining operations on the Zimmerly property were a noise, traffic, and dust nightmare for my family and our neighbors,” said Gorge resident Karen Streeter. “We are grateful to Friends of the Columbia Gorge for protecting our community and to the many judges and government officials who have put an end to this nightmare by upholding the law.”

Over the past several years, Zimmerly and Nutter have lost in litigation before 12 Gorge Commissioners, three superior court judges, three state court of appeals judges, one federal district judge, and one county hearing examiner. Only one of their court cases remains pending; in May, they filed a petition for review at the Washington Supreme Court in a last-ditch attempt to resume mining on the site without land use permits. Their petition is expected to be decided in September. In addition, today’s Clark County decision can be appealed.

“The hearing examiner rightly concluded that the Zimmerly gravel mine will result in significant adverse impacts, thus requiring a full environmental impact statement,” said attorney Bryan Telegin, who represented Friends and several neighbors to the Zimmerly property in SEPA litigation involving the proposed mine. “In fact, the project itself is a significant adverse impact. It would insert a large-scale industrial use in the gateway to a world-renowned national scenic area, next to a regionally significant national wildlife refuge, on a site with designated critical habitat. The project would clash with surrounding uses and violate zoning laws. The project would radically transform a quiet residential area with two grade schools into a loud industrial landscape, disrupting the community and threatening public health, safety, and welfare for decades to come.”

Background Information

Zimmerly Mining and Litigation – Background, Timeline, and Media Links
https://gorgefriends.org/protect-the-gorge/gorge-issues/zimmerly-quarry.html

Legal Decisions

Federal District Court Dismissal of Zimmerly and Nutter Case
Judge Benjamin H. Settle, U.S. District Court, Western District of Washington (Mar. 23, 2023)
https://assets.gorgefriends.org/friends/PDFs/Legal/Zimmerly_v._CRGC_W.D.Wash.2023.pdf

Superior Court Final Judgment Against Zimmerly
Judge Derek J. Vanderwood, Clark County Superior Court (Mar. 24, 2023)
https://assets.gorgefriends.org/friends/PDFs/Legal/ZP5_v._CRGC-Final-Judgment.pdf

Washington Court of Appeals Decision Against Zimmerly and Nutter
Chief Judge Rebecca Glasgow, Judge Meng Li Che, Judge Ian S. Birk, Washington Court of Appeals, Division II (Apr. 4, 2023)
https://casetext.com/case/zimmerly-v-columbia-river-gorge-commn-1

Clark County Hearing Examiner Denial of Land Use Application
Land Use Hearing Examiner Joe Turner, Clark County (June 8, 2023)
https://clark.wa.gov/sites/default/files/media/document/2023-06/SLR-2020-00009-d-washougal-pit.pdf

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; Gary Kahn, Peggy Hennessy, and Tiffany Elkins of Reeves, Kahn, Hennessy & Elkins; Jeffrey S. Myers of Law, Lyman, Daniel, Kamerrer & Bogdanovich, P.S.; Brian A. Knutsen and Emma Bruden of Kampmeier & Knutsen PLLC; Bryan Telegin of Telegin Law 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; and Dave Becker of the Law Office of David H. Becker, LLC.