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Friends Achieves Three Major Court Victories Against Serial Mining Violators

Friends Achieves Three Major Court Victories Against Serial Mining Violators
The unpermitted mining operations at the Zimmerly site transformed a narrow, otherwise quiet rural residential road into an industrial mining “haul road." © Friends Archives, Peter Cornelison
By Nathan Baker
Senior Staff Attorney

June 26, 2023
Categorie(s): Latest News

Like overlapping glacial cycles, the constant stream of litigation brought by the owners and operators of the illegal Zimmerly gravel pit in the Columbia River Gorge National Scenic Area has been slow, steady, and massive. But just as glacial periods often abruptly come to an end, such is now the case with multiple phases of the Zimmerly litigation.

Friends of the Columbia Gorge has played a pivotal role in the litigation, repeatedly defeating the mining violators for more than five years. Recently, over just a twelve-day period, the violators suffered a spectacular trifecta of defeats in three different courts. This marks a watershed moment in the protection of the National Scenic Area from the illegal mining at the Zimmerly pit, which harmed Gorge resources and the Washougal community for years.

Defiant violators

In late 2017, the Nutter Corporation began illegally mining the Zimmerly property in southeast Clark County, just north of the Steigerwald Lake National Wildlife Refuge and at the western gateway to the National Scenic Area. The mining created a constant traffic, noise, and dust nightmare for Gorge residents and visitors alike, and also harmed fish and other wildlife in the adjacent Steigerwald Refuge.

After receiving numerous complaints from concerned citizens, Clark County and Columbia River Gorge Commission officials ordered Zimmerly and Nutter to stop mining without first seeking and obtaining land use review and permits.

Apparently believing themselves to be above the law, Zimmerly and Nutter responded by arguing that they have a “vested right” to mine the site as much as they want, whenever they want, for as long as they want, with no land use oversight under National Scenic Area rules. They also argued that both Clark County and the Gorge Commission lacked jurisdiction to stop them.

Thus began the first phase of the Zimmerly litigation: the enforcement phase. Incredibly, this phase has been in constant litigation for five years straight and counting.

In their arguments against land use enforcement, Zimmerly and Nutter assert that they should be able to mine the site without any land use oversight by either Clark County or the Gorge Commission. They have now challenged these agencies’ authority at five appellate levels, from the Clark County Land Use Hearing Examiner, to the Gorge Commission, to the Clark County Superior Court, to the Washington Court of Appeals, and they are now asking the Washington Supreme Court to hear new claims. They also filed and lost a case in federal court.

Zimmerly and Nutter eventually stopped mining the site in early 2020, but only after two and a half years of violations. Despite stopping the mining, they have never stopped litigating.

Last-ditch effort

On April 4, 2023, a three-judge panel of the Washington Court of Appeals issued a published opinion rejecting numerous arguments by Zimmerly and Nutter in which they challenged the Gorge Commission’s 2019 enforcement decision against the illegal mining. In their judicial opinion, Chief Judge Rebecca Glasgow and Judges Meng Li Che and Ian S. Birk unanimously agreed with Friends that Zimmerly and Nutter cannot mine in the National Scenic Area without land use permits. The court upheld prior decisions by the Clark County Community Development Department, Gorge Commission, and Judges Gregory M. Gonzales and John P. Fairgrieve of the Clark County Superior Court.

Undeterred, Zimmerly and Nutter have filed a last-ditch petition for review in the Washington Supreme Court, radically changing their theory of the case and asserting numerous newly minted arguments after five years of litigation.

Friends has filed an answer to Zimmerly and Nutter’s petition, urging the supreme court not to take the case. The court will decide in the coming months (most likely in September) whether to hear the appeal.

Making a federal case of it

Not content to litigate their challenges to Gorge Commission authority solely in state court, Zimmerly and Nutter also filed a federal lawsuit against the Gorge Commission and individual Gorge Commissioners. Friends intervened and participated in Zimmerly and Nutter’s federal case to defend our state court victories. Fortunately, their federal lawsuit went nowhere.

Zimmerly and Nutter raised a host of claims, including assertions that the Gorge Commission had violated their civil rights and interfered with their business relationships merely by confirming that they are not allowed to mine in the National Scenic Area without land use permits. They also complained that a former Gorge Commissioner had discussed referring their violations to federal law enforcement officials when they continued their mining activities without land use permits even after the appeal hearing at which the Gorge Commissioners told them it was illegal to do so.

On March 23, 2023, Judge Benjamin H. Settle of the U.S. District Court for the Western District of Washington dismissed Zimmerly and Nutter’s federal case. Judge Settle noted that the mining violators were expressly asking the federal court to invalidate the decisions of the Gorge Commission and Clark County Superior Court, and correctly held that the federal court could not do that even if it wanted to, because that would be an improper appeal of a state court matter in federal court. Accordingly, the federal case was dismissed.

Challenging the rules

On March 24, 2023, the very next day after Judge Settle dismissed the federal case, Judge Derek J. Vanderwood of the Clark County Superior Court issued a final judgment in favor of Friends and the Gorge Commission, and against ZP#5, LLC (a Zimmerly corporation), in a case originally filed by Zimmerly in late 2020.

In this case, Zimmerly challenged mining-related revisions made by the Gorge Commission to the Gorge Management Plan, which contains the core land use rules for the National Scenic Area. Zimmerly raised a number of far-fetched legal theories, starting with an argument that the Gorge Commission violated one of Governor Inslee’s COVID-19 emergency proclamations by holding meetings via Zoom during the early days of the pandemic to discuss the proposed rule changes. Zimmerly also argued that its equal protection rights were being violated, apparently because mining trucks are regulated in the National Scenic Area while other types of trucks are not.

Judge Vanderwood rejected all of Zimmerly’s arguments and deemed Friends a prevailing party in the case, thus ending the rule challenge phase of the Zimmerly litigation.

Trifecta of victories

Friends was a party to all of these court cases and worked tirelessly to protect the Gorge and secure these three recent victories, which confirm that the mining activities conducted at the site from 2017 to 2020 were, in fact, illegal—just as Friends and the neighbors of the Zimmerly property have said all along.

With these most recent decisions, Zimmerly and Nutter have now lost before 12 Gorge Commissioners, three superior court judges, three state court of appeals judges, and one federal judge.

Incomplete permit application

Although the rule challenge phase of the Zimmerly litigation is now over and the enforcement phase is drawing to a close, the permitting phase is well underway, and in fact has been underway for three years.

In February 2020, Zimmerly’s lead attorney, James D. “Jamie” Howsley of the Jordan Ramis law firm, filed an application in his own name seeking land use permits from Clark County to mine the property. Mr. Howsley indicated that he was filing the application “under protest” and falsely asserts that his client’s property has been legally operated as a mine for more than 50 years.

As part of the permit proceedings, both sides filed appeals under the State Environmental Policy Act. Clark County Land Use Hearing Examiner Joe Turner heard more than 18 hours of testimony and arguments from the parties and the public, and hundreds of exhibits plus hundreds of pages of briefing were filed.

Among other arguments, Friends has asked the hearing examiner to deny Mr. Howsley’s application as incomplete because it is missing key required elements for a National Scenic Area land use application and therefore cannot be reviewed, let alone approved. In addition, we have pointed out that the proposed mining “haul road” would be located in an area zoned for residential uses where mining uses are prohibited. We currently await the hearing examiner’s decision.

About the author: As Senior Staff Attorney, Nathan Baker is responsible for managing the organization's legal efforts to protect the resources of the Columbia River Gorge. Since Nathan joined Friends in November 2000, Friends has participated in more than one hundred legal cases, losing less than fifteen percent of them. Nathan is licensed to practice law in both Oregon and Washington. He has edited and written for several legal publications on environmental and land use topics. While studying at Lewis & Clark Law School, he served as student body president and worked as a law clerk for the Pacific Environmental Advocacy Center (now Earthrise Law Center) and as the Law School's alternative transportation coordinator.