Friends of Colum. Gorge v. Col. River Gorge

Decision Date16 July 2009
Docket NumberCA A125031.,SC S055722.
Citation213 P.3d 1164,346 Or. 366
PartiesFRIENDS OF THE COLUMBIA GORGE, INC., Columbia Riverkeeper, Columbia Gorge Hotel Co., 1000 Friends of Oregon, Claudia Curran, Eric Lichtenthaler, Jack Mills, Kate Mills, Phil Pizanelli, Dixie Stevens, Brian Winter, and Cynthia Winter, Petitioners on Review, v. COLUMBIA RIVER GORGE COMMISSION, Respondent on Review.
CourtOregon Supreme Court

Gary K. Kahn, of Reeves, Kahn & Hennessy, Portland, argued the cause and filed the briefs for petitioners on review Friends of the Columbia Gorge, Columbia Riverkeeper, Columbia Gorge Hotel Co., Claudia Curran, Eric Lichtenthaler, Jack Mills, Kate Mills, Phil Pizanelli, Dixie Stevens, Brian Winter, and Cynthia Winter. With him on the briefs was Mary Kyle McCurdy, Portland, for petitioner on review 1000 Friends of Oregon.

Jeffrey B. Litwak, White Salmon, Washington, argued the cause and filed the brief for respondent on review.

James E. Mountain, Jr., of Harrang Long Gary Rudnick P. C., Portland, filed the brief for amicus curiae Pacific States Marine Fisheries Commission. With him on the brief was Jona J. Maukonen, Portland. Also on the brief was John Shurts, Portland, for amicus curiae NW Power and Conservation Council.

Erin C. Lagesen, Assistant Attorney General, Salem, filed the brief for amicus curiae State of Oregon. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

GILLETTE, J.

Petitioners, who are individuals, businesses and conservation organizations with connections to the Columbia River Gorge, sought judicial review by the Court of Appeals of the Columbia River Gorge Commission's (commission) 2004 revision of its management plan for the Columbia River Gorge National Scenic Area. Before that court, petitioners argued, in numerous assignments and subassignments of error, that various aspects of the 2004 revision violated the Columbia River Gorge National Scenic Area Act, 16 U.S.C. §§ 544-544p. The Court of Appeals rejected all but one of petitioners' subassignments of error. Friends of Columbia Gorge v. Columbia River Gorge, 215 Or.App. 557, 171 P.3d 942 (2007). We allowed petitioners' petition for review, which challenges the various standards of review that the Court of Appeals employed in considering petitioners' claims, as well as a number of the Court of Appeals' substantive holdings. For the reasons that follow, we affirm the Court of Appeals decision in part, reverse it in part, and remand the case to the commission for further proceedings.

Because a general understanding of the Act and its relationship to the commission and the management plan is necessary to an understanding of the issues in this case, we provide the following background. In 1986, Congress passed the Columbia River Gorge National Scenic Area Act, Pub. L. 99-663, §§ 2-18, 100 Stat. 4274 (1986), now codified at 16 U.S.C. §§ 544-544p. The Act states two purposes: (1) to create a national scenic area in Washington and Oregon "to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources of the Columbia River Gorge"; and (2) to protect and support the economy of the area "by encouraging growth to occur in existing urban areas and by allowing future economic development in a manner that is consistent with" the first purpose. 16 U.S.C. § 544a. The Act creates the Columbia River Gorge National Scenic Area, § 544b, a designated area of land that lies adjacent to the Columbia River in Oregon and Washington. It also authorizes those two states to enter into an interstate compact and to create a regional commission, which, in cooperation and consultation with the United States Secretary of Agriculture (the secretary), is charged with developing, implementing and administering a management plan for the scenic area. 16 U.S.C. §§ 544c, 544d.

The Act itself establishes a framework and a process for developing the contemplated management plan. First, it divides the land in the scenic area into three categories: (1) "Special Management Areas" (SMAs), over which the Secretary of Agriculture is to have primary responsibility; (2) "Urban Areas," which the Act largely exempts from the commission's control; and (3) all remaining areas, which would come to be known as the "General Management Area" (GMA). 16 U.S.C. § 544b(b), (e). Next, the Act directs the commission to carry out various studies and inventories of the features, uses, and resources of all land within the scenic area. 16 U.S.C. § 544d(a). It then requires the commission to use the resulting studies and inventories to designate areas within the scenic area that are suitable for specified uses— agriculture, forest production, open space, and commercial and residential development. 16 U.S.C. § 544d(b). Finally, it instructs the commission to produce a land use management plan that incorporates those land use designations, is consistent with certain specified standards (set out below), and provides specific guidelines for the adoption of land use ordinances within the scenic area.1 16 U.S.C. § 544d(c).

The aforementioned "standards" essentially amount to a requirement that the management plan include certain protective provisions. In particular,

"[t]he management plan and all land use ordinances and interim guidelines adopted pursuant to [the Act] shall include provisions to:

"(1) protect and enhance agricultural lands for agricultural uses and to allow, but not require, conversion of agricultural lands to open space, recreation development or forest lands;

"(2) protect and enhance forest lands for forest uses and to allow, but not require, conversion of forest lands to agricultural lands, recreation development or open spaces "(3) protect and enhance open spaces;

"(4) protect and enhance public and private recreation resources and educational and interpretive facilities and opportunities, in accordance with the recreation assessment adopted pursuant to subsection (a) of this section;

"(5) prohibit major development actions in special management areas, except for partitions or short plats which the Secretary determines are desirable to facilitate land acquisitions pursuant to [this Act];

"(6) prohibit industrial development in the scenic area outside urban areas;

"(7) require that commercial development outside urban areas take place without adversely affecting the scenic, cultural, recreation, or natural resources of the scenic area;

"(8) require that residential development outside urban areas take place without adversely affecting the scenic, cultural, recreation, or natural resources of the scenic area; and

"(9) require that exploration, development and production of mineral resources, and the reclamation of lands thereafter, take place without adversely affecting the scenic, cultural, recreation, or natural resources of the scenic area."

Id. at § 544d(d).

The commission is required to consult with federal, state, and local governments in developing the management plan and must conduct public hearings and solicit public comment before finally adopting it. Id. at § 544d(e). Once the commission adopts a management plan, it must submit it to the secretary for review and concurrence. Id. at § 544d(f). Once that concurrence has been obtained (or the commission has overridden any objections by the secretary by a two-thirds vote), each of the six counties within the scenic area (three in Oregon, three in Washington) must adopt land use ordinances that are consistent with the management plan. Id. at § 544e.

The management plan is subject to periodic review and revision. Under section 544d(g), the commission is required to review the management plan at least every ten years "to determine whether it should be revised." As with the original management plan, it is required to submit "any revised management plan to the Secretary for review and concurrence." Id.

Pursuant to the Act, Oregon and Washington adopted the Columbia River Gorge Compact, which established the Columbia River Gorge Commission and provided for funding of that body. The legislatures of Oregon and Washington ratified the compact shortly thereafter, and the statutes reflecting that ratification appear, respectively, at ORS 196.150 and RCW 43.97.015. Commission members were appointed and the commission commenced work.2 In 1991, the commission completed a management plan and the secretary concurred in that plan in 1992. Thereafter, the management plan controlled land management decisions within the scenic area (except in the Urban Areas).3

In 1997, the commission began the process of reviewing the original management plan "to determine whether it should be revised," as the Act requires. 16 U.S.C. § 544d(g). In the initial stage of that review, which took some time, the commission created a list of topics within the management plan that the commission believed required revision or, at least, further consideration. However, the commission thereafter lost much of the funding that it had depended on to carry out its review and, therefore, decided that it should confine its review to a smaller, select group of issues. Over the next few years, the commission worked on revising the management plan with respect to those selected issues and, in April 2004, it adopted a revised management plan4 that incorporated the revisions.5

Following the management plan's adoption, petitioners timely filed a petition for judicial review of the plan in the Oregon Court of Appeals, as authorized by ORS 196.115.6 They argued that various aspects of the management plan violated the requirements of the Act and also argued that the commission's review process was incomplete because the Act required it to review the entire management plan.

As noted, the Court of Appeals remanded the management plan to the commission for reconsideration of one minor...

To continue reading

Request your trial
24 cases
  • Oil Re-Refining Co. v. Envtl. Quality Comm'n, OAH 1001690
    • United States
    • Supreme Court of Oregon
    • 9 Febrero 2017
    ...982 P.2d 1108 (1999) (describing standards for interpreting federal regulations); see also Friends of Columbia Gorge v. Columbia River, 346 Or. 366, 410, 213 P.3d 1164 (2009) (comparing federal and state standards of deference owed to an agency's interpretation of its own rule).5 It is not ......
  • Couey v. Atkins
    • United States
    • Supreme Court of Oregon
    • 16 Julio 2015
    ...ground for complaint before any rules or regulations have been promulgated.” See also Friends of Columbia Gorge v. Columbia River, 346 Or. 366, 392 n. 24, 213 P.3d 1164 (2009) (challenge to “a possible interpretation of the Act by the Commission * * * was not ripe for review” (emphasis in o......
  • Health Net Life Insurance Co. v. Department of Revenue
    • United States
    • Oregon Tax Court
    • 3 Mayo 2021
    ...of the statute's "text, context, and legislative history." Friends of the Columbia River Gorge, Inc. v. Columbia River Gorge Comm'n, 346 Or. 366, 378, 213 P.3d 1164 (2009) (citing Corp. of Presiding Bishop v. City of West Linn, 338 Or. 453, 463, 111 P.3d 1123 (2005)). The court understands"......
  • Health Net Life Insurance Co. v. Department of Revenue
    • United States
    • Oregon Tax Court
    • 3 Mayo 2021
    ...of the statute's "text, context, and legislative history." Friends of the Columbia River Gorge, Inc. v. Columbia River Gorge Comm'n, 346 Or. 366, 378, 213 P.3d 1164 (2009) (citing Corp. of Presiding Bishop v. City of West Linn, 338 Or. 453, 463, 111 P.3d 1123 (2005)). The court understands"......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT