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«by: Jeffrey B. Litwak, Counsel Columbia River Gorge Coinmission #1 Town & Country Square P.O. Box 730 White Salmon, WA 98672 (509) 493-3323 ...»

-- [ Page 1 ] --

AN INTRODUCTION TO THE LAW AND PRACTICE OF THE

COLUMBIA RlVER GORGE NATIONAL SCENIC AREA

(May 2006)

by:

Jeffrey B. Litwak, Counsel

Columbia River Gorge Coinmission

#1 Town & Country Square

P.O. Box 730

White Salmon, WA 98672

(509) 493-3323

www.gorgecommission.org

1itwakO,gorgecominission.org

LE S

1. SCENIC AREA LAWS AND STANDARDS........ 1 A. Columbia River Gorge National Scenic Area Act, 16 U.S.C. 5 544 et seq

B. Columbia River Gorge Compact, RCW 43.97.015,

ORS 196.150 1 C. Wash. RevCode43.97.025, 35.63.150, 36.32.550,..........1 36.70.980, 90.58.600

D. Or. Rev. Stat. 196.105-196.165.

E. Columbia River Gorgc Coinmiss Columbia River Gorge National Scenic Area F.

....3 Management Plan

Land Use Ordinances

G.

Decisions of the Columbia River Gorge Commission

H.

PRIMER ON INTERSTATE COMPACT LAW

11.

A. Congressional Consent Required

B. The Compact is a Contract Applicatioii of State Law

C.

Pre-Compact State Law........

1.

2. Post-Compact State Law Preservation of State Law in thc Columbia River Gorge 3.

Compact..

This summary of the applicable laws and legal standards within the Scenic Area gives an overview of the legal framework of the Sceuic Area

–  –  –

The Act created the Scenic Area, authorized the states to enter into a compact creating the Gorge Commission, required the Gorge Coinmission and Forest Service to adopt a regional management plan, and required counties to adopt land use ordinmces consistent with the inanagement plan.

–  –  –

The Compact is tlie a@-eetnentbetween Oregon and Washington establishing the Gorge Commission. It is codified in both states’ statutes. The Gorge Commission’s authority is derived from the Compact. The Compact incorporates the Act by reference, so references to the Coinmission’s authority sometimes cite the Act.

–  –  –

hi addition to the Compact, Washington statutes grant authority and direct the state to carry out its respective functions under tlie Act. Washington has also specifically provided that County Coininissioiiers and Planning Commissioners must act in confonnance with the Scenic Area Act and Management Plan, and that planning under I The analysis and opinioiis in these materials are solely those ofthe author, and do not represent policy of or other stated direction by the Columbia River Gorge Commission The cases and statutes described in these materials are current through May 24, 2006.

–  –  –

Oregon statutes also grant authority and direct the state to carry out its respective functions under the Act; they also specify procedures and standards for judicial review.

Additionally, the Oregon legislature specifically found that the Management Plan achieves, on balance, the puiposes of the statewide planning goals. The Oregon counties thus do not plan for Scenic Area land under the Oregon land use planning program.

–  –  –

The Gorge Commission has adopted administrative rules, including rules for open meetings, disclosure of public records, financial disclosure, conflicts of interest, public contracts, and administrative procedures. These Commission nilcs must be consistent with thc morc restrictive of the two states’ statutes on these subjects. 16 U.S.C. 5 544c(b). The Commission reviews its rules after each legislative session to ensure the rules continue to comply with this requirement. Additionally, the Commission maintains specific rules for appeals, enforcement and other actions it handles on a regular basis.

The Commission files its rules with the Oregon Secretary of State and Washington Code Reviser, but the rules are not technically part of the Oregon Administrative Rules or the Washington Administrative Code. The Commission’s rules are retained in Chapter 350 in both states. The rules are available on the Commission’s website (www.gorgeco!nmissioii,org).

–  –  –

The Management Plan contains the land use and 1-esourceprotection standards, noli-regulatory proganis and projects for protecting and enhancing Gorge rcsources, and a description of roles and relationships of goveniincnts and agencies responsible for implementation of the Act. The Management Plan is effective both independently (See e.g., 16 U.S.C. 5 544111and the ORS aiid RCW statutes listed above) and through land use ordinances, The Management Plan is required to he revised every 10 years. The Coininission and Forest Service adopted the Manageinelit Plan in 1991. In 2004, the ageucies coinpleted the first revision. The Management Plan and the revisions are available on the Commission’s website.

–  –  –

The Act requires each ofthe six Gorge counties to adopt laiid use ordinances that are consistent with the Management Plan. In the eveut a county fails to do so, the Gorge Coinmission is required to adopt aiid administer a land use ordinance for Scenic Area





lands in that county. Five ofthe counties have adopted Scenic Area land use ordinances:

Clark County Code ch. 18.334A; Skamania County Code title 22; Multiiomah County Code ch. 38; Hood River County Code, art. 75; aiid, Wasco County National Scenic Area Ordinance. The Gorge Commission administers a land use ordinance for Klickitat County, CRGC Rule 350-8 1.

–  –  –

The Gorge Commission hears on-the-record appeals of land use decisions made by the counties (CRGC Rule 350-60) and de novo appeals of decisions by Commission

–  –  –

precedential effect. The Gorge Commission’s decisions are availablc on the Coinmission’s website.

Appeals of Gorge Coinmission decisions for land in Washington go to the Washington Superior Court. Appeals of Gorge Coinmission decisions for land in Oregon are filed directly in the Oregon Court of Appeals. ORS 196.1 15(2)(a).

PRIMER ON INTERSTATE COMPACT LAW

11.

Because the Columbia River Gorge Commission is an interstate compact agency, and thc Management Plan is the regional (interstate) land use plan, general principles of interstate compact law are an important aspect of Scenic Area law. Interstate compacts are expressly authorized by the U S. Constitution.

–  –  –

From the text of the Constitution, the first pi-inciple, thus, is that Congress must give its consent to an interstate compact. However, not every compact requires consent;

only compacts that enhance state power to the detriment of federal supremacy require consent. United States Steel C o p v. Multistate Tax Comm ‘n,434 U S. 452 (1 978). A corollary to the requirement for consent is that if the states wish to amend a compact, they must either do so in a way that is not inconsistent with the tenns of Congress’ consent, or seek consent to the amendment. The fonii of consent is not important.

Congress may grant consent in advance or by giving express or implied approval to a

–  –  –

the coinpact becomes federal law. ld. at 438.

Thc Coluiiibia River Gorge Niitioiial Scenic Area Act contains Congress' preauthorization for Oregon and Washington to enter into the Columbia River Gorge Compact. 16 U.S.C. $ 544c(a); Columbia River Gorge United 1). Yeutter, 960 F.2d I10 (1992) (discussed bclow). Congress has amended the Act (i.e., the teniis of its consent) several times; however, no person has raised the question of whether the states must readopt the compact to recognize thc aiiiendmcnts. This question of law is untested.

–  –  –

Courts have applied contract principles to a compact. One state may not amend the Compact without the other state joining in that aineiidmeiit and one state iiiay not unilaterally alter duties and responsibilities under a compact. A court may not order

–  –  –

The Ninth Circuit and Washington courts have determined that in order for a state to impose its pre-compact laws oii a coinpact agency, the compact itself must specifically reserve the law it wishes to impose. Seattle Master Builders v. Pac@c NWElec. F o w w and Corn. Flurinirig Couilcil, 786 F.2d 1359 (9thCir.), cert. denied, 479 U.S. 1059 (1 987); Salmon );oar. All v. Dep 't of Fi.rhe~ies,1 18 Wash.2d 270 (1 992); Klicliitat County

–  –  –

River County Circuit Court in Oregon recently held that a ballot measure adopted in Oregon was not effective in the Scenic Area because thc Scenic Area regulations are required to comply with federal law, and because it would have unilaterally impaired the relationship between the states. Columbia River Gorge Comnz 'n v. Hood River County, et al., No. 050051 CC (Hood River County Cir. Ct. Aug. 3, ZOOS), appeal,filed,No.

A129652 (Or. App. Aug. 24, 2005). This case is discussed below as pending litigation.

–  –  –

Similarly, states are restricted fiom imposing post-compact laws on a compact agency. See e.g., C.7: Hellmutli & Assoc. 11. Washington Metro. Area Transit Auth.., 414 F. Supp. 408 (D. Md. 1976). However, states may impose new law on a compact entity if the compact expressly allows this. For example, the New York-New Jersey Port Authority Compact allows ameiidment of the compact through legislation by one state that is "concurred in" by the state. The Courts differ what constitutes "concurred in," but the majority of the courts 1-equirean express statement that they intend to modify the

–  –  –

The Scenic Area Act requires the Gorge Commission to adopt the more restrictive of the two states' "regulations relating to administrative procedure, the making of contracts, conflicts-of-interest, financial disclosure, open meetings of the Commission;

advisory committees, and disclosi.ire ofinfonnation consistent with the inore restrictive statutory provisions of either State." I6 U.S.C. 9 544c(b). Additionally, the Act contains

–  –  –

practices regulation in the General Manageinerit Area, state hunting and fishing regulations, watcr-related rights, and other state and fccleral laws. 16 U.S.C. $ 5440.

These are the specific reservations in the Act. The Coinpact does not reserve the states’ substantive land use laws for the Scenic Area.

An example of a post-compact state law that Oregon intends to apply to the Gorge Coinpact is ORS 196.1 10. In 2003, the Oregon Legislature amended ORS 196.110 to require land use decisions in the Scenic Area be issued in accordance with the Oregon state land use decision time requirements. This statute has not been challenged.

–  –  –

Fourth, an interstate compact agency is neither a state nor a federal agency.

Courts throughout the country have recognized the independent nature of intci-state compact agencies. Several courts have described the Gorge Commission as a separate

–  –  –

Coinmission is “a bi-state ageiicy acting under the authority of both federal and state law.” Tucker v. Colinnbia River Gorge Conzm ‘n,73 Wash. App. 74, 77-78, 867 P.2d 686, 688 (1994). It also indicated by analogy, that the Commission is a “political subdivisioii independent of the states that conceived it.” Tucker v. Columbia River Gorge Comin ‘n, 73 Wash. App. at 80 (1994). The U.S. District Court for the Eastern District of Washington stated that the Gorge Commission is “a hi-state compact between Oregon and Washington.” Klickitat County v. Columbia River Gorge Comnz ‘n, 770 FSupp. 1419 (E.D. Wash. 1991). Tine Hoocl River County Circuit Court stated that the Commission is neither a federal agency nor an Oregon state agency, but is a “bi-state commission.”

–  –  –

1261, 1263 (2005).

SIGNIFICANT LITIGATION INVOLVING THE SCENiC AREA

1.

The Columbia River Gorge National Scenic Area has been the subject of several legal challenges. Both the Forest Service and the Gorge Commission have been involved in defensive and affirmative litigation. A common theme throughout the litigation involving the Scenic Area Act is its interstate nature. An early lawsuit challenged the constitutionality ofthe Act. Several lawsuits have involved the application of state law in the Scenic Area; and some lawsuits have involved takings claims.

–  –  –

The most significant case upholding the constitutionality of the Act is Columbia River Gorge United v. Yeutter, 960 F.2d I10 (9th Cir. 1992). In this case, the Ninth Circuit Court of Appeals held that the Act did not violate the Commerce Clause, the Tenth Amendment, or the Equal Protection Clause, and that the Columbia River Gorge Compact was valid under the Compact Clause. This case also established that Congress could have regulated land use in the Gorge. Thus with Congress’ consent and this determination that the Columbia River Gorge Compact is appropriate for federal legislation, the Gorge Compact is federal law under the Cuyler v. Adnms standard.

–  –  –

As noted above, interstate compa.ct law provides that state law cannot be app!ied to an interstate compact agency unless the compact specifically preserves that law.

–  –  –

In the first Scenic Area case conceiming the applicability of state law (and other federal law), Klicltitat County sued thc Gorge Commission and Forest Service seeking to compel: (1) the Gorge Commission to prepare an environmental impact statement under the Washington State Environmental Policy Act and (2) the Forest Service to prepare an EIS or environinental assessment under either the National Forest Management Act (NFMA) or NEPA prior to adopting the final Management Plan requircd by the Act.

Kliclitnt County v. Columbia River Gorge Comrn ’I?, 770 F. Supp. 1419 (E.D. Wash.



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