The Zimmerly property (in the foreground) in the Columbia River Gorge National Scenic Area. (Image by Brady Holden)
Friends works to stop the largest and longest-running land use violation in the history of the National Scenic Area.
From 2017 to 2020, illegal mining on the Zimmerly property in southeast Clark County, just inside the gateway to the Washington side of the Columbia River Gorge National Scenic Area, harmed Gorge lands, waterbodies, and wildlife, as well as the surrounding community, on a daily basis. The unpermitted Zimmerly gravel pit, located just north of Steigerwald Lake National Wildlife Refuge, has been one of the largest and longest-running land use violations in the history of the National Scenic Area. Clark County officials, Columbia River Gorge Commission officials, the Clark County Superior Court, and the Washington Court of Appeals have all agreed with Friends of the Columbia Gorge that the mining activities on the Zimmerly property were illegal.
Now, in 2023, Zimmerly's attorney seeks permits from Clark County to resume mining at this site, but without the comprehensive environmental review required by law. In addition, the land use application proposes a mining "haul road" in a residential area where mining uses are prohibited.
In 2017, after a twenty-year period with little to no mining activity on the Zimmerly property, the Nutter Corporation began mining the property without the required land use permits, harming Gorge resources and the surrounding community. In 2019, the Columbia River Gorge Commission held that Nutter and Zimmerly were violating the National Scenic Area rules by conducting mining activities without the required permits. Despite six separate Clark County enforcement orders plus the Gorge Commission's ruling, Nutter and Zimmerly continued their unlawful mining activities well into 2020.
View Short Film "When the Hard Work Begins" About the Efforts to Stop the Illegal Mining at the Zimmerly Property:
Both Zimmerly and Nutter have a long and sordid history of mining-related violations on this and other properties. For example, during a brief mining campaign in the mid-1990s on this property, Zimmerly illegally discharged millions of gallons of sediment-laden mining runoff into nearby Gibbons Creek and Steigerwald Lake, destroying endangered salmon habitat and harming resources in the wildlife refuge. Zimmerly was fined nearly $200,000 by the Gorge Commission and Washington Department of Ecology for causing this devastating environmental damage.
After resuming mining on the property in 2017 without first seeking the required permits, Nutter illegally hauled hundreds of truckloads of gravel and dirt per day along SE 356th Avenue, threatening the safety of several families who live on this narrow and otherwise quiet residential street, as well as hundreds of schoolchildren who attend the nearby Columbia River Gorge Elementary School and Jemtegaard Middle School. In July 2018, the severe safety risks posed by the illegal hauling were brought into sharp focus when a fully loaded gravel truck lost control of its brakes while coming down the hill on SE 356th and crashed into the BNSF rail line at more than 60 mph, destroying the tracks and blocking train traffic for more than twelve hours.
Gorge Commission staff's failure to carry out Scenic Act enforcement mandate
Once the illegal mining began on the Zimmerly property, community members and Friends staff repeatedly called on the Gorge Commission staff to enforce the Scenic Area land use rules and shut down the illegal mining immediately. The Commission's executive director is required by the Gorge Commission's rules and the National Scenic Area Act to initiate enforcement action when she/he becomes aware of violations in the National Scenic Area. Unfortunately, the Commission's current director has failed to fulfill this enforcement responsibility, instead erroneously announcing that her role in the National Scenic Area is akin to that of a "neutral" judge (and thus treating herself as if she were one of the appointed Gorge Commissioners, who are required to serve very different functions from the director and the rest of the Commission staff).
This abdication of enforcement responsibilities is all the more disappointing given that the Gorge Commission's executive director has already stated that the mining activities on the Zimmerly property are violating both the Scenic Area rules and a 1997 consent decree issued by the Gorge Commission—all of which the director is required to enforce.
The abdication of enforcement responsibilities also sends the wrong message to Gorge landowners: that the Gorge Commission staff are no longer interested in enforcing the Scenic Area rules, and as a result, when Gorge residents are harmed by violations, they are on their own.
Clark County, to its credit, did attempt to enforce the Scenic Area rules, and in fact issued six separate enforcement orders and cease and desist letters to Zimmerly and Nutter. However, Clark County's enforcement powers are significantly weaker than those of the Gorge Commission.
Gorge Commissioners and multiple courts agree with Friends that mining is illegal
In October 2018, Friends joined with Clark County citizens and landowners in filing an appeal to the appointed members of the Columbia River Gorge Commission, who act as an appellate body for the National Scenic Area. In August 2019, the Gorge Commissioners agreed with Friends that the mining activities on the Zimmerly property lack the required Scenic Area permits, are not legally existing uses, and are land use violations.
Zimmerly and Nutter then appealed the Gorge Commissioners' decision to Clark County Superior Court. In 2021, the Superior Court upheld the Gorge Commissioners' decision, concluding that the Commissioners had jurisdiction over the appeal and that the mining conducted at the site in 2017 through 2020 was illegal. In 2023, a three-judge panel of the Washington Court of Appeals also upheld the Gorge Commissioners' decision and determined that any former mining rights on the property had been lost through discontinuance more than fifteen years prior. Later in 2023, the Washington Supreme Court denied Zimmerly and Nutter's petition for review, thus terminating their meritless efforts to force new mining at the site without any land use permits at all. Meanwhile, a federal case filed by Zimmerly and Nutter was dismissed as an improper attempt to appeal a state court matter in federal court.
Incomplete land use application
In 2020, Zimmerly's attorney, James D. "Jamie" Howsley of the Jordan Ramis law firm, filed a land use application with Clark County seeking permission to mine the property, as well as retroactive approval for the unpermitted mining done in 2017 through 2020. However, the land use application was severely incomplete, hid the project's adverse environmental impacts, and proposed a mining "haul road" in a residential area where mining uses are prohibited. For those reasons and others, the Clark County Land Use Hearing Examiner denied the land use application in 2023. The hearing examiner's decision has been appealed, both to the Gorge Commission under the National Scenic Area Act and to the Clark County Superior Court under the Land Use Petition Act.
Zimmerly Mining Decision Timeline
Summer/Fall 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 construction of underground power lines on the property occurred without the required permits and therefore were violations.
September 8, 2018 - The Clark County Hearing Examiner denied Zimmerly and Nutter's motion for reconsideration of the Examiner's August 4, 2018 final order.
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 appointed members of 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.
July 19, 2019 - Clark County Superior Court Judge Gregory Gonzales made an oral ruling denying a motion filed by Zimmerly and Nutter to stay the Gorge Commission appeal proceedings.
August 13, 2019 - The Gorge Commissioners made an oral ruling that the mining activities on the Zimmerly property lack the required Scenic Area permits, are not legally existing uses, and are land use violations.
August 19, 2019 - Judge Gonzales issued a written order memorializing the Court’s July 19, 2019 oral ruling and concluding that “[t]he National Scenic Area Act expressly requires that the Gorge Commission resolve the appeals of the parties first” before the matter can be heard by the Superior Court.
September 10, 2019 - Clark County notified Zimmerly in writing 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.
February 7, 2020 - Judge Fairgrieve issued an order memorializing the Court’s Jan. 14, 2020 memorandum opinion and concluding that the Land Use Petition Act does not apply to Zimmerly's and Nutter's appeal of the Gorge Commission's decision.
September 14, 2021 - Over the opposition of Zimmerly, Clark County Superior Court Judge Derek Vanderwood issued an order granting Friends' motion to intervene in a new lawsuit brought by Zimmerly challenging the Gorge Commission's 2020 revisions to the Management Plan for the Columbia River Gorge National Scenic Area.
October 13, 2021 - Judge Fairgrieve issued a ruling on the merits of the case, reiterating that the Gorge Commissioners had proper jurisdiction to decide the appeal, upholding their decision, and ultimately concluding that the mining conducted at the site in 2017 through 2020 was illegal.
December 15, 2021 - Judge Fairgrieve issued a Final Order and Judgment affirming the Gorge Commission's decision, rejecting all of Zimmerly's and Nutter's arguments, and deeming Friends a prevailing party in the consolidated court cases.
December 15, 2022 - Over the opposition of Zimmerly and Nutter, U.S. District Judge Benjamin Settle issued an order admitting Friends and the neighbors of the Zimmerly property as intervenors in a new federal case in which Zimmerly and Nutter sought to reverse or vacate the decisions of the Gorge Commission and Judge Fairgrieve.
March 6, 2023 - Judge Vanderwood issued an order granting summary judgment in favor of the Gorge Commission and Friends and denying Zimmerly's motion for summary judgment in Zimmerly's challenge to the 2020 revised Gorge Management Plan.
March 23, 2023 - Judge Settle dismissed Zimmerly and Nutter's federal lawsuit in its entirety and issued a judgment terminating the case.
March 24, 2023 - Judge Vanderwood issued a final judgment memorializing the Court's March 6, 2023 order, clarifying that certain state laws do not apply to the Gorge Commission, and awarding Friends a prevailing party fee against Zimmerly.
April 4, 2023 - The Washington Court of Appeals issued a published opinion rejecting Zimmerly and Nutter's appeal and upholding the Gorge Commission's 2019 final order, confirming that mining is not a legally existing use on the Zimmerly property and that further mining is prohibited without land use approval from Clark County.
June 8, 2023 - Clark County Land Use Hearing Examiner Joe Turner denied a land use application filed by Zimmerly's attorney seeking permission to mine the subject property, denied two appeals filed by Zimmerly under the State Environmental Policy Act (SEPA), and granted two SEPA appeals filed by Friends and the neighbors of the Zimmerly property. Examiner Turner held that the application was incomplete under the National Scenic Area rules and that the project cannot proceed without an environmental impact statement, and signaled that the proposal to operate a mining “haul road” in a residential area is prohibited by National Scenic Area zoning.
August 4, 2023 - Hearing Examiner Turner substantially granted Friends' motion for reconsideration of the County's final order denying land use permits and revised the order to clarify and correct several rulings therein. The Hearing Examiner also dismissed an attempted motion for reconsideration by Zimmerly's attorney, who had failed to timely perfect his attempted filing.
September 6, 2023 - The Washington Supreme Court denied Zimmerly and Nutter's petition for review of the Washington Court of Appeals decision, thus terminating judicial review of Zimmerly and Nutter's efforts to mine the site without any land use permits.
September 14, 2023 - The Washington Supreme Court awarded prevailing party fees and costs to Friends and the neighbors, to be paid by Zimmerly and Nutter.
October 13, 2023 - Clark County Superior Court Judge Nancy Retsinas dismissed an attempted appeal by Zimmerly and Nutter of Hearing Examiner Turner's decision denying the land use application.
October 19, 2023 - Judge Retsinas issued a final judgment memorializing the Court's October 13, 2023 order and awarding prevailing party fees to Friends and the neighbors, to be paid by Zimmerly and Nutter.