Friends of the Col. Gorge v. Columbia River

• Decision Date: 16 July 2009
• Docket Number: SC S055916.,CA A131299.,CRGC No. PA-05-02.
• Citation: 213 P.3d 1191,346 Or. 433
• Parties: FRIENDS OF THE COLUMBIA GORGE, INC., Collyn Baldwin, Claudia Curran, Eric Lichtenthaler, Phil Pizanelli, Dixie Stevens, Kimberlee Thorsell, Peter Thorsell, Brian Winter and Cynthia Winter, Petitioners on Review, and Beverly Klock and Clair Klock, Petitioners, v. COLUMBIA RIVER GORGE COMMISSION, Respondent on Review.
• Court: Oregon Supreme Court

213 P.3d 1191

346 Or. 433

FRIENDS OF THE COLUMBIA GORGE, INC., Collyn Baldwin, Claudia Curran, Eric Lichtenthaler, Phil Pizanelli, Dixie Stevens, Kimberlee Thorsell, Peter Thorsell, Brian Winter and Cynthia Winter, Petitioners on Review, and Beverly Klock and Clair Klock, Petitioners, v. COLUMBIA RIVER GORGE COMMISSION, Respondent on Review.

CRGC No. PA-05-02.

CA A131299.

SC S055916.

Supreme Court of Oregon, En Banc.

Argued and submitted October 29, 2008.

Decided July 16, 2009.

On review from the Court of Appeals.^*

Gary K. Kahn, of Reeves, Kahn & Hennessy, Portland, argued the cause and filed the brief for petitioners on review.

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

GILLETTE, J.

This administrative law case is one of three filed by the Friends of the Columbia Gorge and others (Friends), challenging various actions by the Columbia River Gorge Commission (the commission) under the Columbia River Gorge National Scenic Area Act (the Act) and the Columbia River Gorge Scenic Area Management Plan (management plan). In this case, Friends challenges certain aspects of a 2005 amendment to the management plan, asserting that they are inconsistent with the Act. On review, the Court of Appeals concluded that the amendment to the management plan did not violate the Act in any of the respects asserted by Friends. Friends of Columbia Gorge v. Columbia River (A131299), 218 Or.App. 232, 179 P.3d 706 (2008). In this court, Friends contends that the Court of Appeals applied the wrong legal standards to its review of the commission's actions and asks this court to reverse and remand the Court of Appeals decision for reconsideration under the correct standards. We allowed review and now affirm the decision of the Court of Appeals.

To understand the issues in this case, a brief summary of the legal background is necessary.¹ In 1986, Congress passed the Columbia River Gorge National Scenic Act, 16 U.S.C. §§ 544-544p, which created the Columbia River Gorge National Scenic Area in Oregon and Washington. The purpose of the Act was to protect the scenic, cultural, recreational, and natural resources of the Columbia River Gorge, and to protect and support the economy of the area by encouraging growth in existing urban areas and by allowing future economic development while protecting the area's resources. 16 U.S.C. § 544a.

The Act authorized Oregon and Washington to enter into an interstate compact and to create a regional agency, the Columbia River Gorge Commission. The commission, in cooperation and consultation with the United States Secretary of Agriculture, would be charged with developing and implementing a land use management plan for the "scenic area," which includes approximately 292,000 acres of land along both sides of the Columbia River.² The Act divided the scenic area into three kinds of subareas: urban areas, which are not subject to scenic area regulations or the management plan, 16 U.S.C. § 544b(e); "special management areas" (SMAs), which comprise the more than 100,000 acres of land within the scenic area that are deemed the most sensitive, 16 U.S.C. § 544b(b); and the areas in which the remaining land in the scenic area is located, which are referred to as "general management areas" (GMAs).³ It also established a framework within which the management plan was to be developed, implemented and administered. Among other things, that framework directed the commission to carry out studies and inventories of the features, uses, and resources of the land within the scenic area and required the commission to use the resulting studies and inventories to designate areas within the scenic area that are suitable for various specific uses. 16 U.S.C. § 544d.

As authorized by the Act, Oregon and Washington established the Columbia River Gorge Commission, and, in 1991, the commission adopted a management plan for the Columbia River Gorge. The Act requires the commission to undertake a comprehensive review of the management plan at least every ten years and authorizes the commission to make any necessary revisions, subject to the review and concurrence of the Secretary of Agriculture. 16 U.S.C. § 544d(g). In accordance with that requirement, over the next few years, the commission reviewed whether and in what ways the management plan should be revised, and, in 2004, the commission adopted certain revisions to the plan.

The Act also permits the commission to amend the management plan "at any time that conditions within the scenic area have significantly changed." 16 U.S.C. § 544d(h). The commission adopted rules governing the amendment process, which are published in Oregon at OAR chapter 350, division 50.⁴ The rules set out procedures for citizens to initiate the amendment process, either by requesting the commission to initiate a legislative amendment to the management plan or by filing an application for a quasi-judicial amendment to the plan. OAR 350-050-0040. The only substantive criteria for the commission's approval of an amendment application are set out in OAR 350-050-0030:

"The Commission must find the following criteria are satisfied before it approves an amendment to the Management Plan:

"(1) Conditions in the Scenic Area have significantly changed. This means:

"* * * * *

"(b) new information or inventory data regarding land uses or resources that could result in a change of a plan designation, classification, or other plan provision;

"* * * * *

"(2) The proposed amendment is consistent with the purposes and standards of the Scenic Area Act; and

"(3) No practicable alternative to the proposed amendment more consistent with the purposes and standards of the Scenic Area Act exists."

Under that authority, the commission has amended the management plan a number of times. As pertinent here, in 2005, the owner of the View Point Inn, a building in Multnomah County that is listed on the National Register of Historic Places, submitted an application to the commission to amend the management plan to permit him to use the property for a commercial purpose consistent with its historic use as an inn and a restaurant. The application proposed an amendment to the management plan that would have allowed historic properties in the scenic area that were listed on the National Register before November 17, 1986, to be used for restaurant or hotel purposes if that is how the property had been used historically. The application also stated that the purpose of the proposal was to allow the View Point Inn to generate sufficient income to support its restoration.

In the course of considering that application, the commission began to question how well the management plan protected historic buildings in the scenic area. Ultimately, the commission decided to consider expanding the scope of the proposed amendment to address the protection of such buildings more generally.⁵ It directed its staff to commission an inventory of all historic buildings in the scenic area; to evaluate the uses that were then allowed in those buildings, as well as those that could be allowed to improve protection of those buildings; to conduct a survey of how other jurisdictions encourage preservation of historic buildings; and to assess whether possible new uses of historic buildings would be consistent with the purposes and standards of the Act.⁶ With that information in hand, the commission voted to table the View Point Inn application for the time being and determined, instead, to devise a broader plan amendment dealing with all historic buildings in the scenic area.

The commission eventually proposed substantive modifications to the applicant's proposed plan amendment set a hearing date, and gave the public notice and an opportunity to comment on the proposed modification. At the conclusion of that process, the commission issued a final order finding the three criteria required to support a plan amendment under OAR 350-050-0030 and adopting Plan Amendment (PA) 05-02, which is the subject of this proceeding. With respect to amendment prerequisites set out in OAR 350-050-0030, the commission found, first, that conditions in the scenic area had changed significantly. OAR 350-050-0030(1)(b). Specifically, the commission found that new information and inventory data regarding historic buildings obtained through the review process showed that certain cultural resources—historic buildings— were not being well protected under the management plan and, in fact, were deteriorating. The commission also found that the management plan had not adequately anticipated the difficulty of maintaining historic buildings over the long term as a cultural resource in the scenic area.⁷

Second, the commission found that there was no practicable alternative to its proposed amendment that would be more consistent with the Act. OAR 350-050-0030(3). In that regard, the commission first discussed the parameters of that criterion. The commission stated that consideration of whether there is a practicable alternative begins with the initial proposed plan amendment—to be an "alternative" to that proposal, other suggested options have to satisfy at least the same purpose as the initial proposal, and to be "practicable," the options must be things that can be done, considering technology and cost. See Management Plan, Glossary (so defining the word "practicable").⁸

In this case, the purpose of the initial View Point Inn proposed plan amendment was to allow an adaptive reuse of that property in a manner likely to generate enough revenue to support the restoration of the structure. The commission found that its own modification to the initial proposed plan amendment, PA 05-02, was a practicable alternative to that initial, limited proposal because it was consistent with the purposes of that proposal. The commission also found that PA 05-02 was more consistent with the Act because it provided protection and...