Judith Zimmerly, Jerry Nutter, & Nutter Corp. v. Columbia River Gorge Comm'n
| Docket Number | 56417-3-II |
| Decision Date | 04 April 2023 |
| Citation | 527 P.3d 84 |
| Parties | Judith ZIMMERLY, Jerry Nutter, and Nutter Corporation, Petitioners, v. COLUMBIA RIVER GORGE COMMISSION, Respondent, and Friends of the Columbia Gorge, Jody Akers, Paul Akers, Danny Gaudren, Kathee Gaudren, Rachel Grice, Zachary Grice, Greg Misarti, Edmond Murrell, Kimberly Murrell, Richard J. Ross, Karen Streeter, Sean Streeter, and Eleanor Warren, Clark County, Interested Parties. |
| Court | Washington Court of Appeals |
James Denver Howsley, David H Bowser, Jordan Ramis, PC, 1220 Main St., Ste. 400, Vancouver, WA, 98660-2963, Stephen W. Horenstein, Maren Calvert, Schwabe, Williamson & Wyatt, 700 Washington St., Ste. 701, Vancouver, WA, 98660-3338, for Appellant.
Jeffrey Bruce Litwak, Columbia River Gorge Commission, 57 Ne Wauna Ave., P.O. Box 730, White Salmon, WA, 98672-1850, Nathan J. Baker, Friends of the Columbia Gorge, 123 Ne 3rd Ave., Ste. 108, Portland, OR, 97232-2975, Jeffrey Scott Myers, Law Lyman Daniel Kamerrer et al., P.O. Box 11880, 2674 R W Johnson Blvd. Sw, Olympia, WA, 98508-1880, for Respondent.
Curtis M. Burns, Clark County Prosecuting Attorney's Office, 1300 Franklin St., Vancouver, WA, 98660-2865, for Other Parties.
PUBLISHED OPINION
¶1 Judith Zimmerly's family started operating a surface mine in the Columbia River Gorge in 1972, then halted operations in the 1980s. In 1986, the area became part of the Columbia River Gorge Scenic Area, and federal guidelines required the Columbia River Gorge Commission to revisit all mining authorizations in the scenic area to ensure their continued operation was consistent with the federal law governing the scenic area.
¶2 In 1993, the Commission approved Zimmerly's application to both resume and expand mining gravel on the site in a Commission director's decision. The director's decision stated that the authorization would become void if the development was discontinued for any reason for one continuous year or more. Mining started and stopped again several times, and no mining occurred at the site for at least 10 years between 2005 and 2015.
¶3 In 2017, Jerry Nutter started leasing Zimmerly's property and resumed mining. In 2018, Clark County began a code enforcement action against Zimmerly and Nutter for operating the mine without a scenic area authorization, reasoning that periods of disuse had voided the 1993 director's decision. Zimmerly and Nutter appealed.
¶4 The county hearing examiner held a hearing and concluded that under a provision in the Clark County Code, which had not been adopted at the time of the 1993 director's decision, Zimmerly and Nutter could continue mining despite the lack of a scenic area authorization. The hearing examiner did not apply the discontinuance language in the Commission director's decision or another provision in the Clark County Code regarding discontinued uses.
¶5 A group of the mine's neighbors and the Friends of the Columbia Gorge appealed to the Commission. Zimmerly and Nutter both moved to dismiss the appeal for lack of jurisdiction. The Commission denied the motion to dismiss. Zimmerly and Nutter sought interlocutory review at the superior court.
¶6 In the meantime, the Commission reversed the hearing examiner's decision on the merits and ruled that mining was not permitted on the property because mining had been discontinued for more than one year, triggering both a Clark County Code provision regarding discontinued uses in the scenic area and the voiding provision of the director's decision. Thus, Zimmerly and Nutter would need to apply for a new scenic area authorization from the county to continue mining.
¶7 Zimmerly and Nutter appealed the Commission's final order. The superior court consolidated the appeal of the final order and the interlocutory review on jurisdiction and affirmed the Commission's rulings.
¶8 Zimmerly and Nutter appeal. They argue the Commission lacked jurisdiction, followed an improper procedure, misapplied the law on the merits, and violated the appearance of fairness. We affirm.
¶9 In 1972, Zimmerly's family opened a mine on roughly 35 acres of a property in the Columbia River Gorge to supply gravel for a local highway project. Only a reclamation permit and bond with the Department of Natural Resources was required to conduct surface mining on the property at the time. The mine was intermittently inactive in the mid-1980s, when local demand subsided, and mining eventually stopped.
¶10 In 1986, Congress designated the Columbia River Gorge a national scenic area under the Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544b(a)(1). The federal Act split the scenic area into urban areas, general management areas, and special management areas. 16 U.S.C. § 544b. The Act generally avoids regulating in urban areas. In contrast, the Act significantly limits development in special management areas and provides some restrictions for the general management areas. See 16 U.S.C. § 544d. The Act's purpose is "to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources of the Columbia River Gorge" while encouraging growth "in existing urban areas." 16 U.S.C. § 544a(1), (2). The Zimmerly land is within the general management area.
¶11 The Act also authorized Oregon and Washington to establish the Commission through an interstate compact. 16 U.S.C. § 544c(a). In 1987, Washington enacted the Columbia River Gorge Compact as a state statute, chapter 43.97 RCW, establishing the Commission as "a regional agency" with authority under state law. RCW 43.97.015 art. I(a).
¶12 The Compact gives the Commission broad authority. If a county fails to enact a land use ordinance that complies with requirements in the Act, the Commission can enact a land use ordinance for the county. RCW 43.97.015 art. I(a)(3). The Compact also authorizes the Commission to review proposals for major development actions in the scenic area, which the Commission may reject if it "finds the development is inconsistent with the purposes of [the Act]." RCW 43.97.015 art. I(a)(4). Significantly, the Compact also incorporates the federal Act by reference and grants the Commission "the power and authority to perform all functions and responsibilities in accordance with the provisions of this compact and [the Act]." RCW 43.97.015 art. I(a).
¶13 The Act provides more detail about the Commission's responsibilities. The Act gives the Commission authority to adjudicate appeals from "[a]ny person or entity adversely affected by any final action or order of a county relating to the implementation of [the Act]." 16 U.S.C. § 544m(a)(2) (emphasis added).
¶14 The Act states that the Commission must adopt a management plan setting standards for land use within the scenic area that prevent land uses and development from "adversely affecting the scenic, cultural, recreation[,] and natural resources of the scenic area." 16 U.S.C. § 544d(d)(9). The Commission must then review land use ordinances from counties within the scenic area for compliance with the management plan. 16 U.S.C. § 544e(b). If a county's ordinance is inconsistent with the Commission's management plan, the Commission can reject the ordinance and suggest modifications. 16 U.S.C. § 544e(b)(3). If the county fails to correct the ordinance, the Commission must publish its own ordinance controlling land uses within the scenic area, except for federal lands and urban areas. 16 U.S.C. § 544e(c)(1).
¶15 The federal Act acknowledged that counties would need time to draft their ordinances. Until counties enacted their scenic area ordinances, the Act instructed the Commission to review development and land use proposals for nonurban areas in that county's part of the scenic area. 16 U.S.C. § 544h(c). The Commission could allow a land use or development during this time "only if it determine[d] that such development [was] consistent with" the Act's standards and purposes. Id. The Act also directed the Secretary of Agriculture and the U.S. Forest Service to "develop interim guidelines for the scenic area ... to identify land use activities which are inconsistent with [the Act]" while the counties drafted their scenic area ordinances. 16 U.S.C. § 544h(a)(1).
¶16 The Secretary's interim guidelines, adopted in 1987, were the controlling authority for determining a proposed use or development's consistency with the Act until counties enacted their scenic area ordinances. Id. The interim guidelines applied to most new land uses outside of urban areas, as well as certain existing uses including "the development of sand, gravel or crushed rock," the type of mining at issue here. FOREST SERV., U.S. DEP'T OF AGRIC., COLUMBIA RIVER GORGE NAT'L SCENIC AREA FINAL INTERIM GUIDELINES ch. III(A)(2)(a) (1987) ( INTERIM GUIDELINES ) [https://perma.cc/5983-RDGK ].
¶17 For the enumerated existing uses, including surface mining, the Commission had to conduct a "consistency determination" to assess compliance with the Act. INTERIM GUIDELINES , ch. III(A)(2). If an existing use was found inconsistent with the Act, the landowner was not allowed to develop or continue operating. INTERIM GUIDELINES ch. II(A), (B). Clark County did not adopt its scenic area ordinances until 1996, so these interim guidelines and authority applied between 1987 and 1996. See Clerk's Papers (CP) at 26.
¶18 The interim guidelines had a section that applied to all land uses reviewed under the guidelines. INTERIM GUIDELINES ch. II(A). One universal guideline provided, "When a use or development is discontinued for more than one year, its replacement shall be subject to a consistency determination" to check compliance with the Act and federal guidelines. INTERIM GUIDELINES ch. III(A)(6). Another stated that uses approved under the guidelines "remain subject to all applicable federal, state, and local laws, regulations, and...
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