The Zimmerly property (in the foreground) in the Columbia River Gorge National Scenic Area. (Image by Brady Holden)
Friends works to stop one of the largest and longest-running land use violations 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 quarry, 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, and the Clark County Superior Court have all agreed with Friends of the Columbia Gorge that the mining activities on the Zimmerly property were illegal.
Now, in 2022, Zimmerly seeks permits from Clark County to resume mining at this site, but without the comprehensive environmental review required by law. In addition, Zimmerly proposes a mining "haul route" in a residential area where mining uses are prohibited. Meanwhile, Zimmerly and the Nutter Corporation continue pushing meritless arguments through litigation in a last-ditch effort to force new mining at the site without any land use permits at all.
Issue summary
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 legal settlement between the Commission and Zimmerly—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 has 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 Superior Court both agree with Friends that mining is illegal
In October 2018, Friends joined with Clark County citizens and landowners in filing an appeal with 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. On Oct. 13, 2021, the Superior Court issued a ruling upholding 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.
Incomplete land use application
In 2020, Zimmerly filed a land use application with Clark County seeking permission to mine the property, as well as retroactive approval for the unpermitted mining in 2017 through 2020. However, Zimmerly's land use application is severely incomplete, hides the project's adverse environmental impacts, and proposes a mining "haul route" in a residential area where mining uses are prohibited. The Clark County Land Use Hearing Examiner is currently evaluating Zimmerly's mining proposal. Friends and allies are asking the Hearing Examiner to deny the requested mining permits and require a full Environmental Impact Statement for the project.
Zimmerly Mine Decision Timeline
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.
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.
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.
2021-22 - The Clark County Land Use Hearing Examiner has begun conducting a land use hearing to review Zimmerly's mining application under the National Scenic Area rules, the State Environmental Policy Act, and other applicable laws. Meanwhile, Zimmerly and Nutter have appealed Judge Fairgrieve's Final Order and Judgment to the Washington Court of Appeals.
Friends’ conservation work is driven by members, volunteers, and activists. There are many ways to join our community of Gorge enthusiasts. Here are some ways to get started:
A Clark County Superior Court issued an opinion denying a motion filed by Judith Zimmerly and the Nutter Corporation, the respective owner and operator of the illegal mine.
