This page contains all case law involving the Columbia River Gorge National Scenic Area. Unpublished decisions and decisions reversed on appeal are not included. The cases are listed in reverse chronological order under each jurisdiction. The cases have not been Shepardized to determine whether they are still valid case law; please check other sources to ensure their validity before citing them. A summary of Friends' current legal docket is also available.
- Federal Circuit Courts of Appeal
- Federal District Courts
- Federal Court of Claims
- Oregon Supreme Court
- Washington Supreme Court
- Oregon Court of Appeals
- Washington Court of Appeals
- Surface Transportation Board
- Columbia River Gorge Commission
- Oregon Land Use Board of Appeals
- Washington Growth Management Hearings Boards
- Washington Forest Practices Appeals Board
Federal Circuit Courts of Appeal
- Broughton Lumber Co. v. Columbia River Gorge Comm’n, 975 F.2d 616 (9th Cir. 1992), cert. denied, 510 U.S. 813 (1993).
Inverse condemnation actions against Oregon, Washington, and the Gorge Commission and declaratory judgment action against the Commission dismissed. For actions involving the Commission, the Act does not grant subject matter jurisdiction upon the federal district courts; to the contrary, sections 15(b)(4) through (b)(6) of the Act confer mandatory jurisdiction upon the state courts. The Commission’s waiver of its sovereign immunity to suit in state court does not act to abrogate its immunity from suit in federal court. The states have not waived their sovereign immunity to suits in federal court. Finally, because Broughton failed to seek compensation via existing state procedures prior to filing this action, Broughton’s claim was not ripe for judicial review in federal court.
- *Columbia River Gorge United-Protecting People & Property v. Yeutter, 960 F.2d 110 (9th Cir.), cert. denied sub nom. Columbia Gorge United-Protecting People & Property v. Madigan, 506 U.S. 863 (1992).
The Scenic Area Act is not unconstitutional. The Act does not exceed Congress’s Commerce and Property Clause authorities, and is therefore within the scope of its legislative power. The National Scenic Area regulatory system is a valid product of Congress’s power under the Compact Clause. The fact that residents of the National Scenic Area do not get to vote for their land-use planners does not violate the Equal Protection Clause of the Fifth Amendment. A geographical area may be singled out for different treatment, as long as such treatment is not unconstitutionally motivated.
- Broughton Lumber Co. v. Yeutter, 939 F.2d 1547 (Fed. Cir. 1991).
Federal District Courts
- *GLW Ventures LLC v. U.S. Dep't of Agric., 261 F. Supp. 3d 1098 (W.D. Wash. 2016).
Action brought by landowner against United States Forest Service dismissed for lack of subject matter jurisdiction. The landowner sought to compel the Forest Service, which holds a conservation easement on the property, to accept a reconfiguration of the parcels through a boundary line adjustment. However, Skamania County, the Columbia River Gorge Commission, and the Skamania County Superior Court all held that the proposed boundary line adjustment would violate the Skamania County National Scenic Area ordinance because it would reduce an approximately 96-acre parcel below the 80-acre minimum parcel size. Collateral estoppel precluded the landowner from relitigating the lawfulness of its proposed boundary adjustment. The federal district court must give preclusive effect to the superior court's decision, which forecloses the possibility that the landowner may adjust the parcel boundaries as proposed.
Finally, the case was moot because no effective relief remains available to the landowner. The preclusive effect of the superior court decision made it impossible for the district court to grant effective relief to the landowner. The court also could not rescind the conservation easement deed, because to do so would defy the objectives of the Scenic Area Act.
- *Friends of the Columbia Gorge, Inc. v. Schafer, 624 F. Supp. 2d 1253 (D. Or. 2008).
Friends of the Columbia Gorge had standing to bring a facial challenge to the provisions of the Gorge Management Plan. Friends' purpose is to to protect and enhance the resources of the Scenic Area, and its members use and enjoy Gorge lands. Friends asserts that implementation of the provisions at issue will adversely affect its interests. Friends' claims are redressable by the court even though the Secretary of Agriculture could have let the Plan go into effect without issuing a formal concurrence that the Plan was consistent with the Scenic Area Act.
The Secretary of Agriculture’s concurrence with a Management Plan provision allowing new dwellings on Special Management Area parcels in Rowena Dell was contrary to law. The provision violates the Scenic Area Act’s unambiguous prohibition against residences on SMA parcels smaller than 40 acres. Petitioners’ related claims involving dwellings in SMA Residential land use designations and farm-labor dwelling guidelines were not ripe for review.
The Secretary’s concurrence with a Plan provision that allows the expansion of existing commercial and multifamily residential uses in the SMAs was also contrary to law. Expansions of such uses are major development actions, which the Scenic Area Act unambiguously prohibits.
A number of Petitioners’ claims were not ripe for review. These included a claim that the Plan fails to include standards to protect against adverse cumulative effects to scenic, natural, and cultural resources; a claim challenging the Plan’s failure to require new development in the SMAs to be compatible with the size and scale of nearby existing development; challenges to the Plan’s SMA water resource buffer and SMA forest practices provisions; and a claim that the Plan fails to prevent recreational vehicle campgrounds in SMA Recreation Intensity Class 2 areas. In the alternative, the Secretary’s concurrence on these provisions was not arbitrary and capricious.
Petitioners’ challenges to Plan provisions allowing livestock grazing and the replacement and expansion of existing culverts as uses allowed outright were assumed to be ripe for review. However, the Secretary’s concurrence on these provisions was not arbitrary and capricious.
- *Friends of the Columbia Gorge, Inc. v. United States Forest Serv., 546 F. Supp. 2d 1088 (D. Or. 2008).
The Forest Service violated the Scenic Area Act and NEPA when it failed to review the impacts of its decision to convey a permanent easement across National Forest land to access adjacent private land for logging purposes.
The Forest Service erroneously relied on a prior Scenic Area consistency determination that was based on temporary use of the road. A new consistency determination was required because the proposed use changed from temporary use granted by a special use permit to permanent use granted by an easement. The cumulative effects of recurring, permanent use of the easement for road reconstruction and log hauling were never considered. In addition, the requirement to prepare a Scenic Area consistency determination triggered NEPA.
The adjacent landowner did not have a preexisting right to use the subject road under theories of boundary acquiescence, prescriptive easement, appurtenant easement, or "explicit easement." Furthermore, the Alaska National Interest Lands Conservation Act requires the Forest Service to grant reasonable access to private lands only when they are completely surrounded by federal lands—not when they are merely adjacent to federal lands. Ultimately, the Forest Service’s decision to grant a permanent easement was a discretionary act that altered the status quo and triggered NEPA.
- Stevenson v. Rominger, 909 F. Supp. 779 (E.D. Wash. 1995).
The Forest Service’s offer to purchase plaintiff’s property is not reviewable under sections 15(b)(4) or 15(b)(5)(C) of the Scenic Area Act. The Service’s offer is not a "final action" and plaintiff has not been "adversely affected" by the offer. Furthermore, because there remains a possibility that the Service might later make higher offers to the plaintiff within the three-year waiting period specified in section 8(o) of the Act, the claim is not ripe for federal adjudication.
- Stevenson v. Rominger, 905 F. Supp. 836 (E.D. Wash. 1995).
In landowner’s challenge to the Forest Service’s valuation of her property under section 8(o) of the Scenic Area Act, both Friends and the Gorge Commission met the requirements for intervening as of right. Friends’ interests are identical to the purposes of the Act and are protected by the Act. A ruling in favor of the landowner might vitiate Friends’ interest in the Forest Service’s land acquisition program. The Commission’s interests in administering the Management Plan and the GMA could be affected by the outcome of this case. Finally, the interests of both Friends and the Commission would not be adequately represented by the Forest Service.
- *W. Birkenfeld Trust v. Bailey, 837 F. Supp. 1083 (E.D. Wash. 1993).
Following dismissal of plaintiffs’ as-applied challenge to the Management Plan, plaintiffs’ motion for reconsideration denied. Because plaintiffs offer no new evidence and cite no change in the law, there is no basis for reopening the case. Until all administrative and state court remedies are exhausted, plaintiffs’ claim is not ripe for adjudication.
- *W. Birkenfeld Trust v. Bailey, 827 F. Supp. 651 (E.D. Wash. 1993).
The Eleventh Amendment does not grant the Gorge Commissioners immunity from suit, especially where it is alleged that the Commissioners are acting beyond their statutory powers or in an unconstitutional manner. However, in this case challenging the adoption of the Final Management Plan, the Commissioners were entitled to absolute legislative immunity, and plaintiffs’ claims against the individual Commissioners were accordingly dismissed.
Claims challenging the constitutional validity of the Management Plan may be brought under section 15(b)(4) of the Scenic Area Act. Claims seeking to set aside portions of the Management Plan as inconsistent with the Act must be brought under section 15(b)(2) of the Act, and therefore must comply with the 60-day notice requirements of section 15(b)(3). Here, even though only four of the plaintiffs served notice on the Forest Service, and apparently none of the plaintiffs served notice on the Gorge Commission, the record contained a "multitude" of objections to the challenged Management Plan provisions putting defendants on notice of the pending challenge and giving defendants an opportunity to investigate and prepare for suit. Thus, the purpose of the notice requirement had been served. Motion to dismiss the claims on the basis of insufficient notice denied.
Plaintiffs’ claims seeking to require compliance with the Act appeared to satisfy the constitutional element of standing by showing a threat of real and imminent injury to their property interests upon adoption of the land use ordinance. However, plaintiffs’ claims do not constitute anything more than a "generalized grievance" until the ordinance is adopted, the restrictions are applied to plaintiffs’ land, and plaintiffs exhaust their administrative remedies. The claims were not ripe for adjudication and were dismissed.
- *Klickitat County v. Columbia River Gorge Comm’n, 770 F. Supp. 1419 (E.D. Wash. 1991).
Motion to dismiss case for failure to strictly comply with the citizen-suit notice provisions under section 15(b)(3)(A) of the Scenic Area Act denied. Although only one of the six plaintiffs had served notice on the Forest Service, the Service was aware of the pending lawsuit and its claims. Although none of the plaintiffs had formally served notice on the Gorge Commission, the plaintiffs had voiced their requests in the form of written and oral testimony before the Commission, and the Commission had presumably rejected these requests.
The Forest Service is not required to comply with NFMA planning regulations or to prepare alternatives under NEPA in developing the Management Plan. Further, section 17(f)(1) of the Scenic Area Act exempts the Forest Service from having to prepare an environmental impact statement or an environmental assessment under NEPA. State law cannot be imposed on the Gorge Commission unless the Gorge Compact specifically reserves the right to do so. Thus, the Gorge Commission is not required to follow SEPA procedures in developing the Management Plan. Finally, the Gorge Commission is entitled to some deference in its interpretation of the Scenic Area Act.
Federal Court of Claims
- Broughton Lumber Co. v. United States, 30 Fed. Cl. 239 (1994).
The National Scenic Act did not effect a Fifth Amendment taking of Broughton’s alleged right to apply an existing state-granted water right toward a future FERC hydroelectric power license. Given the significant obstacles posed by preexisting federal and state obligations, Broughton possessed no compensable expectancy in the use of its water right for hydroelectric generation.
Oregon Supreme Court
- *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 346 Or 415, 212 P3d 1243 (2009).
Gorge Commission order approving Multnomah County ordinance authorizing commercial uses on historic properties upheld. The Commission properly interpreted its Plan Amendment to require the County to authorize all of the specified uses both on properties listed on the National Register for Historic Places and on properties "eligible" for listing. The phrase "may be allowed" in the Plan Amendment is not ambiguous. It denotes discretion, unlike the phrase "shall be permitted." However, this does not mean that a county has discretion to omit uses that "may be allowed" from the county’s ordinance. Rather, absent a showing that omitting a use from an ordinance is more protective of resources, counties must list specified uses in their ordinances and then decide on a case by case basis whether to allow the uses.
- *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 346 Or 433, 213 P3d 1191 (2009).
Court of Appeals’ decision upholding Management Plan Amendment authorizing commercial uses on historic properties affirmed. The challenged Plan Amendment did not violate the purposes and standards of the Scenic Area Act. The Scenic Area Act does not expressly prohibit commercial uses outside of the urban areas and commercial zones. The Commission properly gave due consideration to proposed alternatives.
- *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 346 Or 366, 213 P3d 1164 (2009).
In facial challenges to Management Plan provisions, it is consistent with the statutory standards of review in ORS 196.115(3)(c) to (e) to also apply the judicial standard of review of whether the challenged provisions depart from a legal standard expressed or implied in the Scenic Area Act or contravene the Act or some other applicable statute.
The Gorge Commission is entitled to Chevron deference in interpreting ambiguous provisions of the Scenic Area Act or filling in the gaps of the statute. However, post hoc rationalizations interpreting the Scenic Area Act offered for the first time on appeal by the Gorge Commission's counsel, when the agency itself has not articulated a position on the issue, are not entitled to deference.
The Management Plan complies with the Scenic Area Act’s requirement to protect scenic resources from cumulative adverse effects. The Plan meets this mandate by requiring reviewing agencies to review potential cumulative effects in the context of each development application and prohibit uses and development that would contribute to adverse cumulative effects.
The Management Plan does not comply with the Scenic Area Act’s requirement to protect natural and cultural resources from cumulative adverse effects.
GMA Overall Scenic Policy #1 does not violate the Scenic Area Act. Under this policy, reviewing agencies must review proposed development and prevent adverse scenic impacts through a number of means, including modifications to siting, size, and other design features.
The Commission must decide whether to protect geologic resources and whether to require avoidance of residential development in areas with geological hazards.
The Commission did not violate the Scenic Area Act by authorizing fish processing operations and commercial events in specific land use designations, nor by allowing livestock grazing without review in most General Management Area land use designations.
Washington Supreme Court
- *Skamania County v. Columbia River Gorge Comm’n, 144 Wn. 2d 30, 26 P.3d 241 (2001).
Section 15(a)(1) of the Scenic Area Act does not give the Gorge Commission the authority to collaterally invalidate a final county land use decision after expiration of the appeal period.
- Schaefco, Inc. v. Columbia River Gorge Comm’n, 121 Wn. 2d 366, 849 P.2d 1225 (1993).
Landowner’s appeal of a Gorge Commission decision denying development dismissed because appeal was not perfected in a timely manner. A motion for reconsideration is timely only when a party both files and serves the motion within ten days. Because Shaefco’s motion for reconsideration was not served on the Commission within ten days, the motion was untimely and the thirty-day deadline under RAP 5.2(a) for filing a notice of appeal was not extended. As a result, the subsequent notice of appeal was also untimely.
Oregon Court of Appeals
- *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 257 Or App 197, 305 P3d 156 (2013).
Gorge Commission decision to approve the Columbia River Gorge Air Study and Strategy affirmed. The state agencies’ reliance on the existing federal Regional Haze Program as their approach for improving air quality in the Scenic Area was not inconsistent with the Management Plan and Scenic Area Act. The Strategy is a “regional air quality strategy” within the meaning of the Management Plan, and concrete targets for improvement are not required. Utilizing visibility impairment as a surrogate for other pollution concerns was a legally permissible approach.
- *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 248 Or App 301, 273 P3d 267 (2012).
Management Plan revisions affirmed in part, reversed in part, and remanded for reconsideration. Revisions to the Plan’s glossary definition of "natural resources" were reasonable, and the Commission did not abuse its discretion in adopting them. The Plan’s glossary definition of "natural resources" need not include all natural resources, even if other natural resources are protected by other provisions of the Plan. The Management Plan fails to comply with the Scenic Area Act’s mandate to prevent adverse effects, including cumulative adverse effects, to water resources (e.g., streams, ponds, wetlands, riparian areas). However, the Plan does properly prevent cumulative adverse effects to wildlife habitat and rare plants. Finally, the Plan provisions exempting proposed land divisions from the requirement to prepare a cultural resources reconnaissance survey may violate the Act’s requirement to prevent cumulative adverse effects to cultural resources.
- *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 236 Or App 479, 238 P3d 378 (2010), rev den, 349 Or 654, 249 P3d 542 (2011).
Management Plan amendment authorizing recreation resort review use on lands designated commercial recreation upheld. Petitioners did not show that the Gorge Commission erred in concluding that there had been a significant change in circumstances to justify the Plan Amendment. Nor did Petitioners show that the challenged Plan Amendment violated the purposes and standards of the Scenic Area Act. Finally, the Commission’s order approving the Plan Amendment did not make any legal determinations about whether there are any legally existing industrial uses at the Broughton Landing site.
- *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 218 Or App 261, 179 P3d 700, aff’d, 346 Or 415, 212 P3d 1243 (2009).
Gorge Commission order approving Multnomah County ordinance authorizing commercial uses on historic properties upheld. Petitioners did not show that the Commission erred in concluding that the County’s preferred approach of limiting commercial uses to properties listed on the National Register of Historic Places was not more protective of resources than the Commission’s approach.
- *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n 218 Or App 232, 179 P3d 706, aff’d, 346 Or 433, 213 P3d 1191 (2009).
Management Plan Amendment authorizing commercial uses on historic properties upheld. Petitioners did not show that the Gorge Commission erred in concluding that there had been a significant change in circumstances to justify the Plan Amendment. Nor did Petitioners show that the challenged Plan Amendment violated the purposes and standards of the Scenic Area Act. Although Petitioners did not show that the Plan Amendment would adversely affect resources, Petitioners may challenge individual land uses on that basis in the future on an as-applied basis. The Gorge Commission is not required to consider cumulative effects at the time it adopts a Plan Amendment, but adverse cumulative effects must be protected against at the time land use applications are reviewed. Finally, even if the Plan Amendment did not meet its stated goal of protecting historic resources, that would not necessarily mean that the Plan Amendment violates the Act.
- *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n 215 Or App 557, 171 P3d 942 (2007), aff’d in part and rev’d in part, 346 Or 366, 213 P3d 1164 (2009).
The Commission did not violate the Scenic Area Act during its Management Plan review process by limiting its revisions to selected portions of the Plan. However, upon completion of plan review, any portion of the Plan may be challenged as inconsistent with the Act, including previously adopted provisions that were unchanged during plan review. Finally, provisions involving the Special Management Areas are subject to the authority of the United States Forest Service, and therefore challenges to such provisions cannot be brought in the state courts.
Petitioners’ claims involving the scenic resources implementation handbook and the retention of tree cover were not ripe for review.
The Commission did not violate the Act by deleting the requirement to site new development to minimize visibility, nor by extending the time period for new development to achieve visual subordinance from two years to five years.
The Commission did not violate the Scenic Area Act by declining to expand the riparian buffers required by the Management Plan. The current buffers are not optional. The Management Plan provision that exempts portions of the Columbia River adjoining the urban areas from the riparian resource protection guidelines does not violate the Act.
The provisions of the Management Plan involving the protection and enhancement of agricultural lands for agricultural uses do not violate the Scenic Area Act.
The Commission did not violate the Scenic Area Act by allowing outright the replacement or expansion of existing culverts in Open Space land use designations.
The Commission violated the Scenic Area Act by allowing the expansion of existing industrial uses in the General Management Area.
- *Columbia River Gorge Comm’n v. Hood River County, 210 Or App 689, 152 P3d 997, rev den, 342 Or 727, 160 P3d 992 (2007).
Oregon’s Ballot Measure 37 does not apply within the Columbia River Gorge National Scenic Area. The Columbia River Gorge Commission is a bistate entity rather than a state agency. The Columbia River Gorge Compact has the force of federal law. The Scenic Area Act’s implementing rules, including the Management Plan and the county ordinances, are required by federal law and are thus not subject to Measure 37.
- *Murray v. State, 203 Or App 377, 124 P3d 1261 (2005), rev den, 340 Or 672, 136 P3d 742 (2006).
Inverse condemnation claim dismissed. The plaintiffs had not pursued all available administrative remedies, and therefore the case was not ripe. Although the Gorge Commission had denied the plaintiffs’ application for a mining operation, the plaintiffs did not seek review of that denial, nor did they complete a cultural resources survey or file a new development application.
In addition, although the plaintiffs had been enjoined from further ground-disturbing activities after bulldozing the property without a permit, the issuance of the injunction did not ripen the inverse condemnation claim. The injunction was necessary to prevent further unlawful actions by the plaintiffs, and did not foreclose the possibility of future lawful development activities on the property.
- Haigh v. Columbia River Gorge Comm’n, 142 Or App 550, 921 P2d 1350 (1996).
Commission approval of an application for a mobile home and accessory structures upheld. The Commission properly determined through the "special review" process that alternative nonresidential uses would pose a greater threat to deer and elk winter range than the proposed use. Intervention status for opposing neighbor was proper.
- *Friends of the Columbia Gorge v. Columbia River Gorge Comm’n, 133 Or App 1, 889 P2d 1303 (1995).
Commission approval of proposed facility for storing explosives on Forest land upheld. Installation of the facility is a permitted, non-forest use rather than a conversion of forest land to commercial use, and therefore does not violate the Final Interim Guidelines or section 6(d)(2) of the National Scenic Act.
- Murray v. Columbia River Gorge Comm’n, 133 Or App 461, 891 P2d 1380 (1995).
The mining of aggregate and other material in the GMA is a "major development action" that requires review under section 10(c) of the Scenic Area Act. Major development actions are subject to Commission review in all land classifications in the National Scenic Area except urban areas. Landowner’s mining in the GMA without prior Commission approval was a willful violation of the Act.
- *J. Arlie Bryant, Inc. v. Columbia River Gorge Comm’n, 132 Or App 565, 889 P2d 383, rev den, 321 Or 47, 892 P2d 1024 (1995).
Commission’s order directing five-year phase-out of petitioner’s quarry operation, a non-conforming use in the National Scenic Area, upheld. The five-year period was legitimately selected based on the Director’s findings and conclusions regarding a conflict between the quarry operation and the planned expansion of recreational resources in the area.
- *Murray v. Columbia River Gorge Comm’n, 125 Or App 444, 865 P2d 1319 (1993).
Commission’s denial of application to build a road and subdivide an agricultural area upheld. Commission properly found that approval of the application would set a precedent resulting in adverse cumulative impacts of future parcelization, diversion of agricultural land to residential use, and adverse effects on scenic resources in the area. Because the record did not demonstrate that the applicant was left with no economically viable or beneficial use of the property, the denial was not an uncompensated taking.
- *Miller v. Columbia River Gorge Comm’n, 118 Or App 553, 848 P2d 629 (1993).
Commission’s denial of application for a land division and new residence was a legitimate exercise of police power regulatory authority. The denial was not a scenic easement. Furthermore, because the applicants did not demonstrate that they had been deprived of all economically viable or substantial beneficial use of the property, the denial was not an unconstitutional taking.
- *Friends of the Columbia Gorge, Inc. v. Land Conservation & Dev. Comm’n, 85 Or App 249, 736 P2d 575 (1987).
LCDC’s acknowledgement of the City of Hood River’s comprehensive plan to develop Wells Island was improper because the City’s Goal 5 resource inventory and its analysis of economic consequences were inadequate. The inventory’s exclusion of all but two relevant bird species on the island was unacceptable and the economic analysis failed to estimate how many people might use the facilities, the costs of establishing and maintaining the facilities, and how much revenue the facilities might generate.
Washington Court of Appeals
- *Friends of the Columbia Gorge, Inc. v. Wash. State Forest Practices Appeals Bd., 129 Wn. App. 35, 118 P.3d 354 (Div. II 2005).
The DNR properly granted a forest practices permit for a proposal to convert 30 acres of land in a Special Management Area from forest use to new agricultural use. The Management Plan rules in effect at the time the application was filed allowed this type of conversion without review for protection of scenic resources. State law incorporates the Management Plan’s conversion provisions.
- *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’n, 126 Wn. App. 363, 108 P.3d 134 (Div. III 2005).
The Gorge Commission’s decision to approve a 36-acre expansion of the Stevenson Urban Area was supported by substantial evidence. The 36 acres had been within the city limits since before the passage of the Scenic Area Act and the expansion would benefit Skamania Lodge, the county’s largest private sector employer.
- Skamania County v. Woodall, 104 Wn. App. 525, 16 P.3d 701 (Div. II 2001), review denied, 144 Wn.2d 1021, 34 P.3d 1232 (2001), cert. denied, 535 U.S. 980, 122 S. Ct. 1549, 152 L. Ed. 2d 399 (2002).
If the National Scenic Act or Management Plan does not provide a solution to resolve a land use dispute, state common law must be applied. The Management Plan dictates that the right to a nonconforming use terminates when the use is discontinued for more than one year, but does not define "discontinued." Under Washington common law, if a nonconforming use has been abandoned for the specified time period, a rebuttable presumption arises that the landowner intended to abandon the use, but the landowner can overcome the presumption with evidence that there was no intent to abandon. The case must be remanded for a determination of whether the record shows that the landowners did not intend to abandon.
- Tucker v. Columbia River Gorge Comm’n, 73 Wn. App. 74, 867 P.2d 686 (Div. II 1994).
The Gorge Commission was allowed to administer the Final Interim Guidelines adopted by the Forest Service without adopting its own regulations. The Commission’s denial of landowner’s application to subdivide his property was not arbitrary or capricious. The Commission properly determined that the proposed subdivision would "adversely affect" the resources of the National Scenic Area because of its potential cumulative effects.
- Klickitat County v. State, 71 Wn. App. 760, 862 P.2d 629 (Div. III 1993).
The state courts do not have subject matter jurisdiction over claims for declaratory and injunctive relief against the Gorge Commission unless the claims allege a violation of the Scenic Area Act. The Act does not grant the states plenary jurisdiction over all types of suits against the Commission. The Act and Management Plan are federally mandated, and therefore do not constitute state programs for purposes of a Washington statute that prohibits the state from shifting the costs of state programs to the counties. Finally, because the Commission is a creature of federal rather than state law, the state cannot be liable for any costs associated with any inverse condemnation action brought against a county as a result of a county scenic area ordinance.
Surface Transportation Board
- Burlington Northern Railroad Company—Abandonment Exemption—Between Klickitat and Goldendale, WA, Docket No. AB-6 (Sub-No. 335X) (STB served June 8, 2005).
The Surface Transportation Board denied a petition to (1) reopen railbanking proceedings involving the Klickitat Trail, (2) declare certain portions of the Trail abandoned, and (3) revoke authority for interim trail use. The petitioners failed to provide reliable evidence to support their claims. The BNSF Railroad Company retains a right-of-way connecting the trail to the Railroad’s main line. In addition, the Klickitat Trail Conservancy owns an easement that connects the trail to the BNSF property.