The Eagle Creek fire has closed most trails from Wyeth to Troutdale.

Columbia River Gorge National Scenic Area Case Law

Columbia River Gorge National Scenic Area Case Law
A springtime view of Mt. Hood from Tom McCall Point Nature Preserve, located within the Columbia River Gorge National Scenic Area. (photographer: Debbie Asakawa)

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 Unpublished decisions and decisions reversed on appeal are not included.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.
 
*Friends of the Columbia Gorge was a party.

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 is 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).
    The Scenic Area Act does not authorize suit against the Secretary of Agriculture for the alleged taking of Broughton’s water rights. A claim seeking compensation for alleged damages arising from the implementation of the Interim Guidelines does not qualify as a "civil action to compel compliance" under section 15(b)(2) of the Act. Finally, construing 28 U.S.C. § 1331 to give the district court original jurisdiction would render the Little Tucker Act and section 15(b)(5) of the Scenic Area Act meaningless. Transfer to the United States Claims Court is proper.
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Federal District Courts

  • *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.
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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.
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Oregon Supreme Court

  • *Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm’nRequires Adobe Reader, 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’nRequires Adobe Reader, 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’nRequires Adobe Reader, 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.
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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’nRequires Adobe Reader, 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’nRequires Adobe Reader, 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’nRequires Adobe Reader, 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’nRequires Adobe Reader, 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’nRequires Adobe Reader 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’nRequires Adobe Reader 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 CountyRequires Adobe Reader, 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. StateRequires Adobe Reader, 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.
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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.
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Surface Transportation Board

  • Burlington Northern Railroad Company—Abandonment Exemption—Between Klickitat and Goldendale, WARequires Adobe Reader, 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.

Columbia River Gorge Commission

  • *GLW Ventures, LLC v. Skamania CountyRequires Adobe Reader, CRGC Nos. COA-S-13-02 & COA-S-13-03 (May 13, 2014), aff’d (Skamania County Super. Ct. No. 14-2-00071-7) (Dec. 17, 2015).
    Skamania County decision denying a proposed boundary line adjustment upheld in part and remanded in part.

    Skamania County’s National Scenic Area ordinance authorized participants in a County appeal hearing to raise new issues before the close of the public record, so long as each issue was raised in “sufficient detail to afford the County and all parties an opportunity to respond to the issue.” The U.S. Forest Service properly raised issues in the County appeal pursuant to this authority.

    Skamania County correctly concluded that the 80-acre minimum parcel size in the Scenic Area ordinance applied to, and prohibited, the proposed boundary line adjustment, which would have reduced a 96.06-acre parcel below the 80-acre minimum. An exception in the ordinance that allowed parcels to be reduced below the minimum size under certain circumstances did not apply here. On the issue of parcel size, the County’s zoning ordinance was more restrictive and controlled over a federal conservation easement that potentially allowed the ownership of the property to be broken into two specific tracts. Skamania County’s decision did not repeal, abrogate, or violate the federal conservation easement. Finally, Skamania County’s decision did not effect an unconstitutional taking of property.

    The term “property owner” in Skamania County’s Scenic Area ordinance is ambiguous. In this case, the Forest Service was a property owner because it owned a conservation easement worth nearly two-thirds of the appraised value of the property. Under the County’s Scenic Area ordinance, the land use application was not complete and could not be processed unless and until the Forest Service signed or consented to the application.
     
  • *Easton v. Wasco CountyRequires Adobe Reader, CRGC No. COA-W-12-01 (Feb. 14, 2013).
    The parties filed a stipulated motion for a voluntary remand that met all the requirements of Commission Rule 360-60-220(2). The Gorge Commission granted the motion and remanded the appeal to the county for a new decision.
  • *Drach v. Skamania CountyRequires Adobe Reader, CRGC No. COA-S-10-01 (Aug. 24, 2010).
    The Gorge Commission did not have jurisdiction to review a Skamania County resolution addressing land use consistency for a proposed commercial wind energy facility that was under review by the Washington Energy Facility Site Evaluation Council (EFSEC). The County’s resolution was not a final action. Questions of law and fact about whether the project would require road construction within the National Scenic Area should be raised to EFSEC.
  • *Darcy v. Multnomah CountyRequires Adobe Reader, CRGC No. COA-M-06-04 (June 29, 2007), aff’d, 222 Or App 330, 194 P3d 193 (2008).
    County determination that a commercial horse boarding operation and a single-family dwelling were not legally existing uses upheld. The burden is always on the landowner to obtain all relevant land use approvals. Because the landowners in this appeal failed to obtain the required community services permit for the horse boarding operation and the required land use decision for the dwelling, neither use was lawfully established.
  • Bacus v. Skamania CountyRequires Adobe Reader, CRGC No. COA-S-04-01 (Aug. 10, 2004), recons. den. (Nov. 9, 2004),appeal docketed (Clark County Super. Ct. No. 04-2-06500-7) (Dec. 13, 2004), venue transferred(Skamania County Super. Ct. No. 09-2-00190-3) (Nov. 18, 2009).
    When a de novo hearing is held, the parties may submit new evidence, and the applicant retains the burden to demonstrate that the application is consistent with the applicable standards. Here, although the Skamania County Board of Adjustment committed procedural errors during its de novo hearing, the appellants’ substantial rights were not prejudiced. In addition, decision makers are required to ensure that applications are complete before providing notice of an opportunity to comment. Here, although the application was technically incomplete at the time of the notice, Skamania County reasonably believed that it was complete, and the application was made complete prior to the County’s final decision. Thus, no procedural error was committed.

    When reviewing an application for a residence, decision makers must evaluate whether the subject lot was legally created. Creation through a prior governmental approval results in a presumption that the lot was legally created.

    In addition, when proposed development is located within 1000 feet of a sensitive wildlife site, the application must be reviewed by the state fish and wildlife agency. Here, informal review satisfied this requirement. The Columbia River constitutes a sensitive wildlife site because it is used by several legally protected species. Finally, highway demolition spoils containing asphalt do not meet the definition of "fill" and may not be used for site development.
  • *Friends of the Columbia Gorge v. Multnomah CountyRequires Adobe Reader ("Heuker") CRGC No. COA-M-02-01 (July 9, 2002), recons denRequires Adobe Reader (Sep. 17, 2002), rev dismissed (Or. Ct App. June 30, 2004).
    In-kind replacement structures must be made visually subordinate to the maximum extent practicable through the use of proper colors, reflectivity levels, and landscaping. The emergency/disaster response rules do not apply to in-kind replacement dwellings proposed to replace dwellings destroyed by fire.
  • Bacus v. Skamania CountyRequires Adobe Reader, CRGC No. COA-S-01-04 (June 19, 2002).
    Skamania County’s approval of a proposed road was improper because the applicant’s site map did not identify the precise location of the road, the applicant had not submitted a required grading plan prior to the decision, and the record did not demonstrate that the applicant had a legal interest in the land on which the road would be built. As a result, the decision was not based on substantial evidence and the findings were insufficient to support the decision. Scenic area decisions must be based on complete and accurate application materials and a complete review of the materials. Review cannot be deferred through conditions of approval.
  • *Irish v. Skamania CountyRequires Adobe Reader, CRGC No. COA-S-01-07 (May 8, 2002).
    Skamania County improperly concluded that the dwellings in a proposed cluster development were clustered. The dwellings were nearly one-quarter mile apart on opposite ends of the parcel. Further, existing dwellings on adjacent parcels may not be used to effectuate a cluster. Finally, the County’s decision was flawed because the County merely relied on the applicant’s review of his own application rather than conducting an independent review.
  • *Messmer v. Multnomah CountyRequires Adobe Reader, CRGC No. COA-M-01-06 (Mar. 19, 2002).
    Appeal dismissed because petitioners failed to timely file their request for review.
  • *Johnson v. Multnomah CountyRequires Adobe Reader, CRGC No. COA-M-01-02 (Nov. 5, 2001), rev dismissed (Or. Ct. App. Aug. 15, 2003).
    Appeal dismissed for lack of jurisdiction. A change in Multnomah County’s scenic area ordinance deprived the Petitioner from the opportunity for a de novo hearing before the County. As a result, there was no final County action or order that could be heard by the Commission. In addition, because the Commission had no jurisdiction to hear the appeal, it also did not have any authority to order the County to hold a de novo hearing.
  • *Friends of the Columbia Gorge v. Skamania CountyRequires Adobe Reader ("Eagle Ridge"), CRGC No. COA-S-99-01 (June 22, 2001).
    A decision maker cannot make a decision as to whether a proposed land use complies with a scenic area ordinance without a complete application. A decision based on an incomplete application is not based on substantial evidence and deprives the public of the opportunity to review and comment on the proposal. Finally, a decision maker cannot defer the submission of required application materials through conditions of approval.
  • *Murray v. Executive DirectorRequires Adobe Reader, CRGC No. C98-0010-K-G-11 (May 30, 2001).
    Appeal dismissed as moot. Petitioners had sold the subject property and no longer had any legal interest in the property or any authority to act as agents for the new property owner. In addition, the new property owner had not indicated any interest in continuing the appeal.
  • *Haigh v. Wasco CountyRequires Adobe Reader, CRGC No. COA-W-00-01 (Apr. 16, 2001), aff’d, 182 Or App 292, 49 P3d 851 (2002).
    Residential building site approved by County complied with the "minimize visibility" standard. There was no marked difference in visibility between the approved site and the least visible site. In addition, the least visible site was unbuildable because the septic field apparently could not be built within an existing easement for a power line. On the other hand, the alleged $10,000 increase in costs to build at the least visible site was an improper basis for determining unbuildability. Evidence regarding buildability must be well-documented with the testimony of competent professionals and must include an analysis explaining why alternative means of ensuring compliance would not be reasonable.
  • Castle v. Executive DirectorRequires Adobe Reader, CRGC No.C99-0017-K-G-11 (Feb. 16, 2001).
    Because proposed building site for replacement dwelling was approximately ten feet east of the existing dwelling and on a different footprint, replacement dwelling was not an "in-kind" replacement. However, the replacement dwelling complied with the "minimize visibility" standard even though it would not be sited on the least visible portion of the property. Because less visible alternative sites would not allow the landowner to oversee the ongoing operations of her established viable commercial farming operation, the less visible sites were not practicable. Finally, failure by the Executive Director to issue a decision within 72 days does not result in automatic approval of the application.
  • *Friends of the Columbia Gorge v. Skamania CountyRequires Adobe Reader ("Huett"), CRGC No. COA-S-00-02 (Dec. 20, 2000).
    County decision approving boundary line adjustments between three tracts of land reversed. The County’s finding that the three tracts each met the one-acre minimum lot size was not supported by substantial evidence. In addition, because the three tracts were remnants of a 1904 "ancient subdivision" that had never been recognized under modern zoning standards, the tracts did not constitute legally separate and buildable lots. The Scenic Area Act and Management Plan do not allow for recognition of ancient subdivisions. Finally, Washington’s Growth Management Act does not apply within the National Scenic Area and could not be used to legitimize the ancient subdivision.
  • *Friends of the Columbia Gorge v. Skamania CountyRequires Adobe Reader ("L’Hommedieu"), CRGC No. COA-S-00-04 (Oct. 16, 2000), aff’d No. 00-2-00157-8 (Super. Ct. Clark County Feb. 7, 2002).
    County decision approving new residence upheld. Although approved building site was not the least visible, it nevertheless complied with the "minimize visibility" standard because the least visible site was a "wet" area and therefore would be impracticable.
  • *Heany v. Executive DirectorRequires Adobe Reader, CRGC No. C99-0002-K-S-11 (Feb. 22, 2000).
    Executive Director properly denied a proposed 2400-square-foot, 34-foot-tall accessory building. The proposed building would not have been incidental and subordinate to the main use of the property because the building was too large and would have been used to store farm machinery and materials for a construction business. There can only be one "main use" per property, and the main use of this property was residential.
  • Clark v. Skamania CountyRequires Adobe Reader, CRGC No.COA-S-99-04 (Feb. 22, 2000).
    County condition of approval requiring a single-family dwelling to be sited at a different location than applicant’s proposed site upheld. The approved site would better meet the requirements for siting dwellings on forest land because it would be closer to the main road, thus minimizing overall disturbance to the parcel and minimizing the amount of forest land used to site dwellings, structures, access roads, and service corridors.
  • *Murray v. Wasco CountyRequires Adobe Reader, CRGC No. COA-W-98-03 (Oct. 5, 1999).
    County approval of proposal to lay a fiber optic cable affirmed. The decision was supported by substantial evidence and was not clearly erroneous or arbitrary and capricious. The County did not make any enforcement errors; the record showed that the applicant ceased its unpermitted operations once it learned that a permit was required and then fully complied with the permit process.
  • *Friends of the Columbia Gorge, Inc. v. Skamania CountyRequires Adobe Reader ("Carell"), CRGC No. COA-S-96-03 (June 2, 1998).
    County approval of proposed cluster development reversed. The county road crossing the property was owned in fee simple by the County rather than the applicant and therefore could not be counted toward the property’s total acreage. The property was only 38.12 acres, which did not meet the 40-acre minimum lot size. In addition, the County erred in processing the application as a simple land division. In evaluating a cluster development application, the decision maker must compare the impacts of the proposed cluster with the impacts from conventional parcel-by-parcel development. This comparison must evaluate siting opportunities with respect to all of the factors in the ordinance (visibility, landscape features, landscape setting, cultural resources, consolidation of development, natural resources, and resource management). The County also failed to ensure permanent protection for at least 75% of the property. Finally, the County erred in not requiring a cultural resource reconnaissance survey prior to approval.
  • *Friends of the Columbia Gorge v. Skamania CountyRequires Adobe Reader ("Spiegl"), CRGC No. COA-S-96-02 (July 24, 1997).
    County approval of proposed cluster development reversed and remanded. The County erred in processing the application as a simple land division and in failing to scrutinize resource impacts prior to approval.
  • Windle v. DohertyRequires Adobe Reader, CRGC No. C96-0009-H-G-11 (Dec. 10, 1996).
    Although a single-family residence could be allowed on the subject property, the Executive Director’s findings regarding the siting and size of the approved dwelling were insufficient to support the decision, and the decision was not supported by substantial evidence in the whole record. The Executive Director did not properly evaluate the following factors: siting of the residence in relation to the existing trees on the property, protection of the rural character of the rural residential land use designation, a determination of the exact size of the dwelling, and compatibility with existing development in the vicinity. Remanded for further review.
  • *Friends of the Columbia Gorge v. Skamania CountyRequires Adobe Reader ("Mills"), CRGC No. COA-S-95-02 (June 27, 1996).
    County decision approving a farm dwelling and accessory building reversed. The subject 20-acre parcel was one of eleven contiguous tracts all owned by the same property owner. The proposal must be analyzed in light of the entire 335-acre "subject farm or ranch." A residence already existed on the subject farm, and the criteria did not permit approval of an additional dwelling.
  • *Friends of the Columbia Gorge, Inc. v. Skamania CountyRequires Adobe Reader ("Nature Friends Northwest"), CRGC No. COA-S-95-01 (Nov. 16, 1995).
    County decision approving a "clubhouse" reversed because a clubhouse is not an allowed use in the underlying land use designation. If the Scenic Area rules do not allow a use outright or though review, it is not permitted. In addition, the clubhouse can not be allowed as a "learning or research facility," because its primary purpose would be recreational or social.
  • Haigh v. DohertyRequires Adobe Reader, CRGC No. C94-0041-W-G-11 (Apr. 12, 1995), aff’d sub nom. Haigh v. Columbia River Gorge Comm’n, 142 Or App 550, 921 P2d 1350 (1996).

    Although a mobile home could be allowed on the subject property, the Executive Director’s findings with regard to the required agricultural buffer were insufficient to support the decision and the decision was not supported by substantial evidence in the whole record. Remanded for further review.

  • Sexton v. DohertyRequires Adobe Reader, CRGC No. C94-0068-K-G-11 (Mar. 16, 1995).

    Executive Director’s approval of a proposed single-family dwelling, detached garage, and septic tank upheld. Executive Director’s findings of fact and conclusions of law adopted.

  • *Kuhlman v. Skamania CountyRequires Adobe Reader, CRGC No. COA-S-94-01 (Mar. 14, 1995).

    County’s denial of request to build a residence on a 10-acre parcel in an SMA upheld. Section 6(d)(5) of the Scenic Area Act prohibits major development actions in SMAs, and the subject action qualifies as a major development action under section 2(j)(4).

    The Kuhlmans did not meet the requirements for invoking the special review process. They had not described how the scenic area rules impact the use of their property, nor had they explained why the requested use must be allowed to provide economic or beneficial use of the property.

  • *In re Eagle I Wind Partners, Inc.Requires Adobe Reader (Apr. 18, 1994).

    Commission upheld Executive Director’s decision to deny acceptance of application to place 33 wind turbine modulars. The proposed facility would produce electric power for commercial purposes, and therefore constituted a prohibited industrial use.

Oregon Land Use Board of Appeals

  • *Lois Thompson Housing Project v. Multnomah County, 37 Or LUBA 580 (2000).

    Appeal of County notice of violation of land use permit dismissed for lack of jurisdiction. An appeal of a county scenic area decision filed with LUBA prior to the date the Gorge Commission issues a final decision reviewing the county decision is premature and will be dismissed. LUBA has jurisdiction over a county scenic area decision only when the decision is first appealed to the Gorge Commission and then appealed to LUBA in lieu of the Oregon Court of Appeals. Finally, where LUBA lacks jurisdiction over a scenic area appeal, it will not transfer the appeal to circuit court.

  • Kelley v. City of Cascade Locks, 37 Or LUBA 80 (1999).

    Appeal of a city council resolution endorsing the siting of a tribal casino within city limits dismissed for lack of jurisdiction because the resolution was not a land use decision. The resolution merely expressed conditional support for the casino, did not apply the city’s land use regulations, and did not have any impact on present or future uses of land.

    Land owned by a tribe in fee simple is subject to the jurisdiction of the state government and its political subdivisions. In contrast, land held in trust for a tribe by the U.S. Secretary of the Interior is not subject to the jurisdiction of the states, but rather is subject to the jurisdiction of the tribal government.

  • Mazeski v. Wasco County, 28 Or LUBA 159 (1994), aff’d, 133 Or App 258, 890 P2d 455 (1995).

    Application for a sand and gravel mining conditional use permit on property located within the National Scenic Area and subject to the Columbia River Gorge Overlay zone must be reevaluated by the County under various review criteria. County’s findings regarding continuation of historic levels of extraction and operation, historic compatibility with surrounding properties, and impacts on traffic flow and safety in the area were not supported by substantial evidence in the record. County’s findings regarding compatibility with farm uses, public roads, and right-of-way uses were mere conclusions that did not demonstrate that the approval standards were met.

    On the other hand, criterion prohibiting development from causing "a negative impact on the scenic quality of the Gorge" is highly subjective and was satisfied when the County performed the required site visibility analysis and considered the visual impacts of the "level of development proposed" on the Gorge as a whole, taking into consideration existing conditions at and near the site. The visibility from vantage points not specifically listed in the ordinance need not be considered.

  • Mazeski v. Wasco County, 26 Or LUBA 226 (1993).

    Petitioners reasonably relied on a local code provision and hearing notice stating that the county court’s review would be limited to the evidentiary record before the planning commission, and were unaware that materials not in the planning commission record had been placed before the county court. Petitioners did not waive their right to challenge the submission of these materials by failing to object below. Because the materials were relevant to the applicable approval standards and because petitioners had been denied the opportunity to rebut the materials, their substantial rights were prejudiced and the challenged decision must be remanded.

Washington Growth Management Hearings Boards

  • *Achen v. Clark County, Western Washington Growth Management Hearings Board, Case No. 95-2-0067, Final Decision and Order (Sep. 20, 1995).

    A Washington Growth Management Hearings Board does not have jurisdiction to determine whether the Scenic Area Act has been violated. However, the Growth Management Act provides no authority to place an Urban Growth Area within the GMA or the SMAs.

Washington Forest Practices Appeals Board

  • Columbia River Gorge Comm’n v. State ("Seeder Tree"), FPAB Nos. 95-31 & 95-32 (Oct. 10, 1996).

    When reviewing an application for forest practices in the National Scenic Area, the DNR must base its review solely upon the Forest Practices Act and its regulations. Here, no provision of the Forest Practices Act or its regulations required the DNR to apply the scenic area rules. Therefore, when reviewing Seeder Tree’s forest practices application, the DNR was not required to deny or condition the application in order to meet the scenic area rules.

    On the other hand, applicants for forest practices in the National Scenic Area must know and adhere to the scenic area rules, and RCW 43.97.025(1) requires the DNR to deny applications that purport to disregard or supervene these rules.

  • *Friends of the Columbia Gorge v. Washington DNR ("Underwood Mountain"), FPAB No. 93-61 (Nov. 30, 1993).

    The FPAB does not have jurisdiction to review the promulgation of a rule, but it does have jurisdiction to review the application of a rule in the issuance of a specific permit.

    The DNR properly classified SDS’s forest practices application as Class III rather than Class IV. The permit was exempt from SEPA because the logging did not have a potential for a substantial impact on the environment. First, the logging on Underwood Mountain occurred in a mosaic pattern that was compatible with the surrounding area. Second, the operations were located in the middle ground or background as seen from key viewing areas. Third, the Scenic Area Act imposes lesser scenic restrictions on logging of non-federal lands within the GMA. Finally, appellants did not show that SDS’s clearcuts, when considered in conjunction with other applicants’ clearcuts in the area, were either related or cumulatively sufficient to have a potential for a substantial impact on the environment.

  • Friends of the White Salmon v. State, FPAB Nos. 89-18 & 90-1 (Jan. 16, 1991).

    The FPAB has jurisdiction to review the consistency of forest practices regulations with the Forest Practices Act and SEPA when the DNR’s application of such regulations is at issue. WAC 222-16-050(1), a forest practices regulation that subjects certain types of applications to SEPA, is invalid because it is underinclusive when compared with RCW 76.09.050(1), which makes SEPA applicable to all forest practices with "a potential for a substantial impact on the environment."

    Scenic resources and aesthetics are elements of the environment under SEPA. In addition, the Forest Practices Act obligates state officials to consider the effects of timber cutting on scenic beauty. In a National Wild and Scenic River corridor, clearcutting or overstory removal leaving stock of unspecified size has the potential for a substantial impact on the environment and triggers SEPA. Remanded to the DNR for a determination of whether an environmental impact statement must be prepared.

*Friends of the Columbia Gorge was a party.

This page was last updated on July 7, 2017 by Nathan Baker.