Friends of Columbia Gorge v. Columbia River

• Decision Date: 31 October 2007
• Docket Number: A125031.
• Citation: 215 Or. App. 557,171 P.3d 942
• Parties: FRIENDS OF the COLUMBIA GORGE, INC.; Columbia Riverkeeper; Claudia Curran; Eric Lichtenthaler; Phil Pizanelli; Dixie Stevens; Columbia Gorge Hotel Co.; 1000 Friends of Oregon; Jack Mills; Kate Mills; Brian Winter; and Cynthia Winter, Petitioners, v. COLUMBIA RIVER GORGE COMMISSION, Respondent.
• Court: Oregon Court of Appeals

171 P.3d 942

215 Or. App. 557

FRIENDS OF the COLUMBIA GORGE, INC.; Columbia Riverkeeper; Claudia Curran; Eric Lichtenthaler; Phil Pizanelli; Dixie Stevens; Columbia Gorge Hotel Co.; 1000 Friends of Oregon; Jack Mills; Kate Mills; Brian Winter; and Cynthia Winter, Petitioners, v. COLUMBIA RIVER GORGE COMMISSION, Respondent.

A125031.

Court of Appeals of Oregon.

Argued and Submitted March 14, 2007.

Decided October 31, 2007.

Gary K. Kahn, Portland, argued the cause for petitioners. With him on the briefs were Reeves, Kahn & Hennessy, and Mary Kyle McCurdy and 1000 Friends of Oregon.

Jeffrey B. Litwak argued the cause and submitted the brief for respondent.

Before LANDAU, Presiding Judge, BREWER, Chief Judge, and ORTEGA, Judge.

LANDAU, P.J.

The Columbia River Gorge Commission revised its management plan for the Columbia River Gorge National Scenic Area. Petitioners seek judicial review of those revisions, arguing that the revisions violate federal law in some two dozen different ways. In particular, petitioners contend that the revised management plan is fatally incomplete and that the plan's revisions are contrary to the requirements of the law. In brief, we conclude that the revised management is not unlawfully incomplete, but that in one aspect the revised management plan does violate that law. We therefore remand for reconsideration.

I. BACKGROUND

We begin with an overview of the governing legal framework and the facts leading to this review, leaving to our analysis of particular assignments of error any additional facts that are relevant to those assignments.

A. The National Scenic Act

Congress passed the Columbia River Gorge National Scenic Act in 1986. The Act creates the Columbia River Gorge National Scenic Area, which stretches for more than 80 miles along the Columbia River and encompasses nearly 300,000 acres, including parts of six different counties in two different states: Clark, Klickitat, and Skamania counties in Washington; and Hood River, Multnomah, and Wasco counties in Oregon. 16 U.S.C. §§ 544(d), 544b. Congress's stated goals in passing the Act are "to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources" in the gorge and "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 consistent with the goal of protecting the gorge's resources. 16 U.S.C. § 544a.

To accomplish those goals, the Act establishes a framework within which a land use management plan is to be developed, implemented, and administered. The Act authorizes Oregon and Washington to enter into an interstate compact and to create a regional commission, which, in cooperation and consultation with the United States Secretary of Agriculture, would be charged with developing and implementing the land use management plan. 16 U.S.C. § 544c.

In laying the groundwork for the development of the management plan, the Act divides the gorge into three kinds of areas. First, the Act designates 13 "urban areas" in the gorge that are not subject to scenic area regulations in the management plan. 16 U.S.C. § 544b. Next, the Act expressly designates 115,000 acres of "special management areas" (SMAs), deemed to comprise the most sensitive parts of scenic area. Id. The SMAs are located primarily, though not exclusively, in the western half of the gorge. Id. Finally, the remaining land comprises what the commission has designated as the gorge's "general management areas" (GMAs) and covers approximately 149,000 acres, the majority of which are located in the eastern half of the scenic area. See id. (specifying boundaries of management areas).

The Act calls for the commission and the Secretary of Agriculture (who, in turn, delegated the statutory authority to the Forest Service) to develop a regional land use management plan for the GMAs and SMAs in three basic steps. First, the Act calls for the commission and the Secretary to conduct resource inventory, economic opportunity, and recreation assessment studies. 16 U.S.C. § 544d(a). Second, based on the results of those studies, the Act calls for the development of land use designations for the scenic area. 16 U.S.C. § 544d(b). Those designations, developed by the commission and the Secretary, result in a zoning map for the scenic area, designating allowed uses — e.g., agriculture, commercial, open space, forestry, residential — in different areas. Id. Third, the Act calls for the commission and the Secretary to develop a land use management plan for the scenic area, incorporating the land use designations and including specific land use guidelines. 16 U.S.C. § 544d(c). The commission is charged with developing designations and guidelines applicable to the GMAs, while the Secretary is charged with developing the designations and guidelines applicable to the SMAs. 16 U.S.C. §§ 544d(c), 544f(f).

In developing the management plan, the commission and the Secretary are charged with consulting with federal, state, and local governments and Native American tribes having jurisdiction within the scenic area. 16 U.S.C. § 544d(e). They are also charged with conducting public hearings and soliciting public comment before adopting the final management plan. Id.

To implement the regional land use management plan, the Act requires that the six counties within the scenic area adopt land use ordinances that are consistent with the plan guidelines. 16 U.S.C. § 544e(b). If a county refuses to implement such ordinances, the commission is required to create and administer conforming land use ordinances for the county. 16 U.S.C. § 544e(c). Only those counties that enact land use ordinances that are consistent with the guidelines in the land use management plan become eligible for federal economic development grants. 16 U.S.C. § 544i(c)(4).

The Act establishes a broad set of standards for the management plan and county ordinances enacted pursuant to it:

"The management plan and all land use ordinances * * * adopted pursuant to this 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, and natural resources of the scenic area; and

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

16 U.S.C. § 544d(d). The Act defines "adversely affect" as

"a reasonable likelihood of more than moderate adverse consequences for the scenic, cultural, recreation[,] or natural resources of the scenic area, the determination of which is based on —

"(1) the context of the proposed action;

"(2) the intensity of a proposed action, including the magnitude and duration of an impact and the likelihood of its occurrence;

"(3) the relationship between a proposed action and other similar actions which are individually insignificant but which may have cumulatively significant impacts; and

"(4) proven mitigation measures which the proponent of an action will implement as part of the proposal to reduce otherwise significant [e]ffects to an insignificant level[.]"

16 U.S.C. § 544(a). After development of the management plan, the commission is required to submit the plan to the Secretary of Agriculture, who must concur that its contents are "consistent with the standards established in this section and the purposes of this Act[.]" 16 U.S.C. § 544d(f).

After approval and concurrence, the commission must periodically review the management plan. Specifically, the Act provides:

"No sooner than five years after adoption of the management plan, but at least every ten years, the Commission shall review the management plan to determine whether it should be revised. The Commission shall submit any revised management plan to the Secretary for review and concurrence, in accordance with the provisions of this section for adoption of the management plan."

16 U.S.C. § 544d(g).

The Act also provides for judicial review of commission decisions and actions. Among other things, it provides that the state courts of Oregon and Washington have jurisdiction to review any final order or action of the commission relating to the implementation of the Act. 16 U.S.C. § 544m(b)(6)(C).

Judicial review of "decisions" of the commission in this court is governed by ORS 196.115. Specifically, a "final action or order" of the commission is subject to review on a petition for judicial review of an order in a contested case under the state Administrative Procedures Act, ORS 183.482. ORS 196.115(2)(a). Such a petition for judicial review is subject to the following standards of review:

"(c) The court may affirm, reverse or remand the order. If the...