Friends of the Columbia Gorge's Current Legal Docket
Friends' legal work emphasizes protection of the Columbia Gorge's resources and enforcement of Scenic Area land use laws and rules
Springtime view from Coyote Wall in the Catherine Creek area of the eastern Gorge. (photographer: Annette Hadaway)
We focus on litigation and administrative proceedings that will help protect the Gorge's sensitive and unique scenic, natural, cultural, and recreational resources and establish positive precedent for future decisionmaking.See a list of past cases involving the Columbia River Gorge National Scenic Area.
Energy Development
1. Friends v. Energy Facility Siting Council (2017 Permanent Rules) (Oregon Supreme Court)
Friends and allies have challenged EFSC's revisions to its rules governing amendments to energy project site certificates. In adopting the rule revisions, EFSC violated the Oregon Administrative Procedures Act's mandatory rulemaking procedures. In addition, several of the specific rule revisions violate state laws governing energy siting.Status: On August 1, 2019, the Oregon Supreme Court held that the challenged rules "are invalid." Friends and allies subsequently filed a petition for attorney fees, which is currently being litigated.
Counsel: Gary Kahn, Nathan Baker (Friends), Steve McCoy (Friends), Mac Lacy (ONDA)
2. Friends v. Energy Facility Siting Council (2019 Temporary Rules) (Oregon Supreme Court)
Friends and allies have challenged EFSC's temporary revisions to its rules governing amendments to energy project site certificates. EFSC violated the Oregon Administrative Procedures Act's mandatory provisions governing the adoption of temporary rules.Status: The appeal has been fully briefed and argued, and is awaiting a decision by the Oregon Supreme Court.
Counsel: Gary Kahn, Nathan Baker (Friends), Steve McCoy (Friends), Mac Lacy (ONDA)
3. In re Perennial Wind Chaser Station (Oregon Energy Facility Siting Council)
The Oregon Energy Facility Siting Council (EFSC) has unlawfully amended the site certificate for the Perennial Wind Chaser Station, a 415-MW gas power plant proposed in Umatilla County. EFSC also unlawfully denied a request by Columbia Riverkeeper, Friends of the Columbia Gorge, and Oregon Wild to conduct a contested case proceeding on the proposed site certificate amendments. Among other problems, the proposal to extend the construction deadlines was filed and approved under invalid rules, and EFSC failed to evaluate new information about the air pollution and climate change impacts of gas power plants that was not available when the project was first applied for several years ago.Status: Friends and allies are currently reviewing our legal options for responding to EFSC's decisions.
Counsel: Maura Fahey, Erin Saylor (Columbia Riverkeeper), Nathan Baker (Friends)
4. In re Summit Ridge Wind Farm (Oregon Energy Facility Siting Council)
The Oregon Energy Facility Siting Council (EFSC) has unlawfully amended the site certificate for the Summit Ridge Wind Farm, a 194-MW wind energy project proposed along the Deschutes River. EFSC also unlawfully denied a request by Friends and allies to conduct a contested case proceeding on the proposed site certificate amendments. Among other problems, the proposal to extend the construction deadlines was filed and approved under invalid rules, and developer Pattern Energy has refused to update the bird and bat use surveys, which are now more than a decade old.Status: Friends and allies have filed a petition for reconsideration or rehearing of EFSC's orders in this matter. EFSC has until January 28, 2020 to act on our petition.
Counsel: Gary Kahn, Nathan Baker (Friends)
Railroad Development
1. Union Pacific Railroad Company v. Wasco County Board of Comm'rs (Oregon Court of Appeals)
Friends and allies are defending a decision by the Columbia River Gorge Commission affirming Wasco County's denial of Union Pacific's proposal to construct approximately four miles of second mainline track in the vicinity of Mosier, Oregon. The project would interfere with tribal treaty rights and would violate the Scenic Area Act's treaty rights protections.Status: The appeal is on hold while the parties pursue mediation.
Counsel: Gary Kahn, Steve McCoy (Friends)
2. Union Pacific Railroad Company v. Runyon (U.S. Ninth Circuit Court of Appeals)
Friend and allies intervened in a lawsuit filed by Union Pacific in which the railroad company sought to enjoin the National Scenic Area permitting and appeals processes for its proposal to construct approximately four miles of second mainline track in the vicinity of Mosier, Oregon. The U.S. District Court of Oregon dismissed the case because Union Pacific had failed to name several Northwest Indian Treaty Tribes as defendants in the case. Union Pacific then appealed to the Ninth Circuit.Status: The appeal is on hold while the parties pursue mediation.
Counsel: Gary Kahn, Steve McCoy and Nathan Baker (Friends)
3. BNSF Railway Co. v. Clark County (W.D. Wash.)
BNSF deliberately constructed a new second-track rail line through Steigerwald Lake National Wildlife Refuge without seeking or obtaining the required National Scenic Area permits. In an attempt to avoid accountability for its land use violations, BNSF sued Clark County in federal district court, arguing that no Scenic Area permits were required.Status: Competing motions for summary judgment are fully briefed and are awaiting a decision in the federal district court.
Counsel: Gary Kahn, Steve McCoy and Nathan Baker (Friends)
Coal Transport
1. Millenium Bulk Terminals-Longview, LLC v. Wash. State Dep't of Ecology (Cowlitz County Superior Court)
Friends and allies intervened in the applicant's appeal of a denial by the Washington Department of Ecology of a water quality permit for a proposed coal export terminal in Cowlitz County, Washington. The denial of the permit was within the Department of Ecology's authority under the State Environmental Policy Act.Status: The Department of Ecology has filed a motion for discretionary review by the Washington Court of Appeals. The motion will be argued on February 12, 2020 in Tacoma.
Counsel: Earthjustice (Marisa Ordonia, Kristen Boyles, Jan Hasselman)
2. Millenium Bulk Terminals-Longview, LLC v. Cowlitz County (Washington Court of Appeals)
Friends and allies intervened in the applicant's appeal of Cowlitz County's denial of shoreline development permits for a proposed coal export terminal in Cowlitz County, Washington. The Cowlitz County Hearing Examiner properly concluded that the proposed project fails to reasonably mitigate ten unavoidable, significant adverse environmental impacts identified in the final environmental impact statement; fails to satisfy the environmental standards of the Cowlitz County Code; does not recognize and protect the statewide interest over local interest; does not result in long term over short term benefit; does not protect the resources and ecology of the shoreline; and is not consistent with the policies of the Shoreline Management Act and Cowlitz County Shoreline Master Program.Status: The Washington Court of Appeals will hear oral argument on January 21, 2020 in Vancouver.
Counsel: Earthjustice (Marisa Ordonia, Kristen Boyles, Jan Hasselman)
3. Lighthouse Resources, Inc. v. Inslee (Ninth Circuit Court of Appeals)
Friends and allies will seek to intervene in a lawsuit filed by several companies seeking to develop a proposed coal export terminal in Cowlitz County, Washington. The State of Washington lawfully denied two key permits for the proposed terminals consistent with the agencies' statutory and constitutional authority. The state's authority over the proposed coal terminal is not preempted by federal law governing railroads and ports.Status: Briefing is ongoing in Lighthouse's appeal at the Ninth Circuit.
Counsel: Earthjustice (Kristen Boyles, Jan Hasselman, Marisa Ordonia)
Climate Change
1. Chernaik v. Brown (Oregon Supreme Court)
Friends joined with several dozen organizations, entities, Oregon legislators, elected officials, and other persons in seeking amici status and filing amici briefs with the Oregon Supreme Court, urging the court to accept review of and reverse a decision by the Oregon Court of Appeals. The court of appeals erroneously held that Governor Brown and the State of Oregon do not have a fiduciary duty to affirmatively protect Oregon's public trust resources from the effects of climate change.Status: The Oregon Supreme Court granted amici status to Friends and allies, and accepted review of the decision of the court of appeals. The case has been fully briefed and argued, and is awaiting a decision by the supreme court.
Counsel: Elisabeth Holmes (for amici)
Land Use and Zoning
1. Zimmerly v. Columbia River Gorge Comm'n (Clark County Superior Court)
The owner and operators of an unpermitted gravel quarry in the Columbia River Gorge National Scenic Area have appealed a decision by the Columbia River Gorge Commission that the quarry is not a legally existing use. Mining activities on the property are unlawful without a valid Scenic Area land use permit.Status: The owner and operators of the quarry have filed a motion to prevent the Gorge Commission and Clark County from taking further enforcement action. The motion has been fully briefed and argued, and is awaiting a decision by the Clark County Superior Court.
Counsel: Nathan Baker (Friends) and Gary Kahn (neighbors)
2. Zimmerly v. Columbia River Gorge Comm'n (Interlocutory Appeal) (Clark County Superior Court)
The owner and operators of an unpermitted gravel quarry in the Columbia River Gorge National Scenic Area attempted to file an interlocutory appeal of an appeal proceeding of the Columbia River Gorge Commission.Status: On August 19, 2019, the Clark County Superior Court denied a motion filed by the owner and operators of the quarry seeking to stay the Gorge Commission's appeal proceedings. This case is likely to be consolidated with the subsequent appeal of the Gorge Commission's final appellate order (listed above).
Counsel: Nathan Baker (Friends) and Gary Kahn (neighbors)
3. In re Modified Development Review Decision No. C19-0004 (Columbia River Gorge Comm'n)
Friends appealed a decision by the Gorge Commission's Executive Director approving a dwelling in a Special Management Area, on a site adjacent to Major Creek. Among other errors, the Commission Director approved the dwelling in a highly visible location, thus violating multiple scenic resource protection rules.Status: The appeal is currently being briefed, and will be argued before the Gorge Commission on February 11, 2020.
Counsel: Steve McCoy and Gary Kahn
4. Save Our Scenic Area v. Skamania County (Clark County Superior Court)
Save Our Scenic Area and Friends of the Columbia Gorge filed suit against Skamania County for failing to zone thousands of acres of unzoned, forested lands. The County is in violation of state law for failing to adopt zoning and failing to protect forest lands for commercial forestry.Status: In July 2015, the Washington Supreme Court remanded the case to the Clark County Superior Court. In 2018 and 2019, Skamania County zoned approximately 12,000 acres of the approximately 14,000 remaining acres of privately owned unzoned lands throughout the County. Skamania County has agreed to review the zoning for the remaining approximately 2,000 acres of privately owned unzoned land by 2022, and the parties have agreed to postpone the litigation until then.
Counsel: J. Richard Aramburu (Save Our Scenic Area), Nathan Baker and Gary Kahn (Friends)
5. Reynier v. Skamania County (Skamania County Superior Court)
Friends intervened in support of Skamania County in an appeal by a landowner of a county decision that approved a proposed dwelling and denied a second proposed dwelling. The subject property consists of one legal lot that is eligible for only one dwelling.Status: A settlement was reached in 2012 but has not yet been implemented.
Counsel: Gary Kahn
6. Reynier v. Skamania County (Skamania County Superior Court)
Friends and adjacent neigbors intervened on behalf of Skamania County in an appeal of a county decision denying a third dwelling on a parcel eligible for only one new single-family dwelling.
Status: See above.
Counsel: Gary Kahn
This page was last updated on January 8, 2020 by Nathan Baker.