Friends of Columbia Gorge, Inc. v. Schafer, CV 04-1423-MO.
| Decision Date | 24 November 2008 |
| Docket Number | No. CV 04-1423-MO.,CV 04-1423-MO. |
| Citation | 624 F.Supp.2d 1253 |
| Parties | FRIENDS OF the COLUMBIA GORGE, INC. et al., Plaintiffs, v. Edward T. SCHAFER, Secretary of the U.S. Department of Agriculture et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
Gary K. Kahn, Reeves Kahn & Hennessy, Peggy Hennessy, Reeves Kahn & Eder, Portland, OR, for Plaintiffs.
Stephen J. Odell, United States Attorney's Office, Portland, OR, for Defendants.
For at least the last 18,000 years, since its scouring by the Lake Missoula Flood, the Columbia River Gorge has been one of the most unusual and beautiful places on earth. Its centerpiece, of course, is the mighty Columbia River, a 2000 kilometer jewel that divides much of Oregon and Washington. But trimming that river on either side are dozens of waterfalls, river canyons, basalt cliffs, and volcanoes that make up this remarkable area. In addition to its natural beauty, it is also a major shipping route connecting the Pacific Northwest with its markets in all directions. In many places in the Gorge it is possible to stand in the spray of a moss covered waterfall, visually removed from the modern world, and be just a few hundred feet from an interstate freeway, a major rail line, and river and air traffic. It is also home to many vibrant communities and major tourist attractions, including world famous windsurfing. Finally, the river itself is crossed by as series of dams, making it the largest producer of hydroelectric power of any river in North America.
Against this backdrop of competing interests and features, Congress designated a portion of the Gorge as a National Scenic Area. This case concerns the Columbia River Gorge National Scenic Area ("Scenic Area") and its management. The Friends of the Columbia Gorge, Inc. and other organizational and individual plaintiffs (collectively "Friends of the Gorge") challenge the decision by Regional Forester Linda Goodman, acting on behalf of Edward Schafer, Secretary of Agriculture (collectively "Secretary"), to concur with the Columbia River Gorge Commission ("Commission") that the Revised Management Plan ("RMP") for the Scenic Area is consistent with the standards and purposes of the Columbia River Gorge National Scenic Area Act ("Scenic Area Act"), 16 U.S.C. §§ 544-544p. Friends of the Gorge alleges that the Secretary's decision was arbitrary and capricious or in violation of the law because provisions of the RMP violate the Scenic Area Act.
The matters now before the court are Friends of the Gorge's Motion for Summary Judgment (# 76), the Secretary's Cross-Motion for Summary Judgment (# 91), and the Secretary's Motion for a Stay (# 97). The majority of Friends of the Gorge's claims are not ripe for judicial review; in particular claims 1.1, 1.2, 2.1, 2.2, 4, 5, and 6. Claims 2.3, 2.4, 7, and 8 require the court to determine whether the Secretary's action was arbitrary and capricious or not in accordance with the law. The court holds that the Secretary's concurrence was not in accordance with the law as to the Rowena Dell portion of claim seven and as to claim eight. Friends of the Gorge's motion for summary judgment is therefore DENIED as to claims one through six, GRANTED IN PART and DENIED IN PART as to claim seven, and GRANTED as to claim eight. Accordingly, the Secretary's cross-motion is GRANTED as to claims one through six, GRANTED IN PART and DENIED IN PART as to claim seven, and DENIED as to claim eight. The Secretary's motion for a stay pending a decision by the Oregon Supreme Court is DENIED.
In 1986, President Reagan signed the Scenic Area Act into law, creating the Scenic Area. The Scenic Area falls within two states, Oregon and Washington, and six counties, Hood River, Multnomah, and Wasco counties in Oregon, and Clark, Klickitat, and Skamania counties in Washington. It also includes federal land, primarily the Mt. Hood and Gifford Pinchot National Forests.
The Act creates rules and procedures for managing the Scenic Area to further the goals of:
(1) establish[ing] a national scenic area to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources of the Columbia River Gorge; and
(2) protect[ing] and support[ing] the economy of the Columbia River Gorge area by encouraging growth to occur in existing urban areas and by allowing future economic development in a manner that is consistent with paragraph (1).
16 U.S.C. § 544a. It also divides the land in the Scenic Area into three categories: (1) special management areas, (2) urban areas, and (3) general management areas.1 The special management areas are specifically identified in the Act and are largely considered the most vulnerable areas. Id. § 544b(b). They are generally subject to the most stringent regulations. The urban areas are also specifically identified in the Act. Id. § 544b(d). The general management areas are all the remaining lands within the Scenic Area not designated as special management or urban areas.
A unique aspect of the Scenic Area Act is the division of management authority it creates between the Secretary, the Commission, and various local governments.
The Commission is a bi-state agency created by Oregon and Washington through an interstate compact. Or. Rev. Stat. § 196.150; Wash. Rev. Code § 43.97.015. Congress ratified the states' agreement and provided specifications for the Commission in the Act. Congress specified that the Commission is to be composed of one member from each of the counties, appointed by the governing body of the counties; three members from each state, at least one of whom lives within the Scenic Area, appointed by the respective state governor; and one nonvoting member from the Forest Service appointed by the Secretary of Agriculture, for a total of thirteen members. 16 U.S.C. § 544c(a)(C). Congress also specified that the Commission was to adopt regulations to govern its affairs so that there would be a uniform system of laws governing the Commission's actions, in addition to the Scenic Area Act itself. Id. § 544c(b). The Commission has management authority over the non-federal land within the Scenic Area. Id. §§ 544e(a); 544d(b).
The Secretary has primary authority over the federal lands within the Scenic Area. Id. §§ 544d(c)(4); 544f(a)(1). He also has increased authority over non-federal lands in the special management areas. Id. § 544f(f)(1) ().
Other governing entities within the Scenic Area, including local governments and Indian tribes, also play a management role. For example, section 544d(e) provides that the Commission and the Secretary "shall exercise their responsibilities pursuant to [the Scenic Area Act] in consultation with Federal, State, and local governments having jurisdiction within the scenic area or expertise pertaining to its administration and with Indian tribes." The counties are also permitted to adopt land use ordinances consistent with the management plan. However, if a county fails to do so within the time provided by the Scenic Area Act, the Commission "shall make and publish a land use ordinance setting standard for the use of non-Federal lands in such county within the boundaries of the national scenic area, excluding urban areas." Id. § 544e(c)(1).
The Scenic Area Act mandates that the Commission adopt a Scenic Area management plan within three years of the Commission being formed. Id. § 544d(c). The terms of the plan relating to federal land and special management areas are to be provided by the Secretary and incorporated without change by the Commission. Id. §§ 544d(c)(4), (c)(5)(a). Once the Commission adopts a management plan, including the provisions provided by the Secretary, it forwards the plan to the Secretary for review. Id. § 544d(f)(1). The Secretary then has three options: he can (1) expressly concur, (2) do nothing for ninety days, which is then deemed a concurrence, or (3) deny concurrence and submit suggested modifications to the Commission. Id. § 544d(f)(1)-(2). If concurrence is denied, the Commission can either revise and resubmit the plan or override the Secretary's denial with a two-thirds vote of its membership, including a majority from each state, in favor of adopting the plan without the Secretary's proposed modifications. Id. § 544d(f)(3).
After a plan is adopted, the Commission must review it to determine whether it should be revised, "[n]o sooner than five years after adoption ... but at least every ten years." Id. § 544d(g). When the Commission adopts a revised management plan, it must be submitted to the Secretary for "review and concurrence," using the process described above. Id.
The Commission adopted the initial management plan for the Scenic Area in October 1991. The Secretary concurred that the plan was consistent with the purposes and standards of the Scenic Area Act in early 1992, and the management plan has been in effect since that time. In 1997, the Commission and the Forest Service began the first review of the plan and the Commission adopted the final RMP in April 2004. The RMP was then sent to the Secretary for review, and the Secretary delegated his authority to review the plan to the Regional Forester for the Pacific Northwest Region of the Forest Service, Linda Goodman. Friends of the Gorge filed a complaint in Oregon state court in June 2004,...
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