Since October 2017, illegal mining in eastern Clark County, just inside the northwest boundary of the Columbia River Gorge National Scenic Area, has been harming Gorge lands, waterbodies, and wildlife, as well as the surrounding community, on a daily basis. The unpermitted rock quarry, located just north of Steigerwald Lake National Wildlife Refuge, is one of the largest and longest-running land use violations in the thirty-four-year history of the National Scenic Area. 

Unfortunately, despite repeated pleas for help from hundreds of citizens, the staff of the Columbia River Gorge Commission have failed to carry out their enforcement responsibilities under the Scenic Area Act and implementing rules, thus allowing the illegal quarry to keep operating with impunity. The Commission’s staff could, at any time, shut down the illegal mining immediately by using its enforcement powers and issuing a simple stop-work order. 

Issue summary

In October 2017, the Nutter Corporation began mining the Zimmerly property without the required land use permits, harming Gorge resources and the surrounding community. In August 2018, Clark County Hearing Examiner Joe Turner held that mining is allowed on the property under an outdated land use approval issued in 1993 by the Gorge Commission’s executive director, and that the hearing examiner lacked jurisdiction to determine whether the 1993 approval is still in effect. 

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.
 
Since resuming mining on the property in 2017 without seeking Scenic Area permits, Nutter has 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 quarry 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 train tracks and blocking train traffic for more than twelve hours.
  
Since the illegal mining began, community members and Friends staff have 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.

Gorge Commission staff's failure to carry out Scenic Act enforcement mandate

This abdication of enforcement responsibilities is all the more disappointing given that the Gorge Commission’s executive director has already stated that the current mining is violating both the Scenic Area rules and a 1997 legal settlement between the Commission and Zimmerly. 
 
Since 2016, the Commission’s director has not initiated any land use enforcement actions anywhere in the National Scenic Area. These changes send 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 affected by violations, they are on their own.
 
In the Zimmerly case, Clark County, to its credit, did attempt to enforce the Scenic Area rules. However, Clark County’s enforcement powers are significantly weaker than those of the Gorge Commission. 

Gorge Commissioners 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; their appeal remains pending.
  
Speaking about the mining operation, Friends Senior Attorney Nathan Baker said, "This is the largest ongoing land use violation in the history of the National Scenic Area. Zimmerly and Nutter are violating the law and harming the Gorge with impunity. This illegal and irresponsible mining must stop.”
 

Zimmerly mine decision timeline

• October 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 the underground construction of 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 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 Commission 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.

Media links

• Neighbors, Friends warn of ‘disaster waiting to happen’ at Washougal Pit, Camas-Washougal Post-Record, July 16, 2020
• Unpermitted Activity Alleged at Washougal Pit, The Columbian, Oct. 8, 2019
• Gorge Commission Rejects Mining Operation Within Scenic Area, Oregon Public Broadcasting, Aug. 13, 2019
• Residents Say Columbia Gorge Mine Violates Scenic Area Act, Oregon Public Broadcasting, Aug. 9, 2019
• Quarry in Washougal incites quarrel over land-use regulations, Columbia Insight, Dec. 13, 2018
• Friends of Gorge signals it will file suit over mining pit, The Columbian, Dec. 10, 2018
• Local conservation group, neighbors files intent to sue over Washington quarry, KATU News (Portland), Dec. 10, 2018
• Groups challenging renewed activity at mine file appeals, The Columbian, Oct. 17, 2018
• Friends of the Columbia Gorge appeals Zimmerly mining decision, Oct. 10, 2018
• Opinion issued on Zimmerly quarry, The Columbian, Aug. 12, 2018
• U.S. mine faces questions over legality and safety risks, Mine Technology, July 27, 2018
• Quarry rocks Washougal, Camas-Washougal Post-Record, July 26, 2018
• "County needs to immediately shut down Washougal rock quarry," Letters to the Editor, The Columbian, July 26, 2018
• Mine traffic troubles neighbors, The Columbian, July 25, 2018
• County tells gravel pit near Washougal to cease mining operations, The Columbian, Feb. 7, 2018
• Dispute focuses on gravel mine's noise permit process, The Columbian, Jan. 10, 2018