Tucker v. Columbia River Gorge Com'n

• Decision Date: 22 February 1994
• Docket Number: No. 14748-3-II,14748-3-II
• Parties: Tom TUCKER, Appellant, v. COLUMBIA RIVER GORGE COMMISSION, Respondent.
• Court: Washington Court of Appeals

Page 74

73 Wn.App. 74

867 P.2d 686

Tom TUCKER, Appellant, v. COLUMBIA RIVER GORGE COMMISSION, Respondent.

No. 14748-3-II.

Court of Appeals of Washington,

Division 2.

Feb. 22, 1994.

Alan L. Gallagher, Canby, OR, for appellant.

Lawrence C. Watters, Counsel Columbia River Gorge Com'n, White Salmon, for respondent.

PETRICH, Judge. ¹

Tom Tucker appeals from a decision of the Skamania County Superior Court affirming a denial of his application to subdivide real property located in the Columbia River Gorge Scenic Area. Tucker sought to subdivide four 10-acre parcels of land into eight 5-acre parcels.

In 1986, Congress passed the "Columbia River Gorge National Scenic Area Act" (Act). ² Its purpose was

(1) to establish 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) to protect and support 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. ³ One central feature of the Act was the creation of the Columbia River Gorge Commission (Commission), 16 U.S.C. § 544c, to manage the lands designated as part of the Columbia River Gorge National Scenic Area (Scenic Area). 16 U.S.C. § 544b. Under the Act, the interim management guidelines required the Commission to "review all proposals for major development actions and new residential development in such county in the scenic area, except urban areas." 16 U.S.C. § 544h(c). Final interim guidelines were in effect when Tucker filed his application to divide his property, making his proposal subject to the Commission's review. ⁴ The Commission's mandate under the interim guidelines was to "allow major development actions and new residential development only if it determines that such development is consistent with the standards" set forth in the Act. 16 U.S.C. § 544h(c). Proposals, such as Tucker's, to subdivide property are "major development actions". 16 U.S.C. § 544(j)(1). Pursuant to the Commission's procedural rules, the Director of the Commission considered Tucker's application after the public was given notice of the proposal and an opportunity to comment. Commission Rules 350-20-008, 009, and 010.

Richard Benner, the Executive Director of the Commission, entered findings of fact and conclusions of law, and denied the application. Tucker appealed to the Commission, which conducted a de novo review of the Director's decision. Commission Rule 350-20-018. The Commission adopted findings of fact and conclusions of law and upheld the Director's decision. ⁵ Tucker then appealed to the Skamania County Superior Court, as allowed by 16 U.S.C. § 544m(b)(6)(A). That court, sitting in an appellate capacity, affirmed the Commission's decision. We assume a similar role and must review the propriety of the Commission's decision. Finding no error, we affirm.

Preliminarily, we must decide what standard of review applies when reviewing the decision of a bi-state commission acting under the authority of both federal and state law. The Act specifically provides that the Commission is not a federal agency or instrumentality:

[T]he States of Oregon and Washington shall establish by way of an interstate agreement a regional agency known as the Columbia River Gorge Commission, and shall incorporate sections 544 to 544p of this title by specific reference in such agreement. The Commission shall carry out its functions and responsibilities in accordance with the provisions of the interstate agreement and of sections 544 to 544p of this title and shall not be considered an agency or instrumentality of the United States for the purpose of any Federal law ...

(Italics ours.) 16 U.S.C. § 544c(a)(1)(A). RCW 43.97.015, which incorporates the Act, specifically provides:

The legislature of the State of Washington hereby ratifies the Columbia River Gorge Compact set forth below, and the provisions of such compact hereby are declared to be the law of this state upon such compact becoming effective as provided in Article III.

Clearly, the Commission is acting under authority of state law even though its authority extends beyond our state's borders by virtue of the interstate compact. Compare Seattle Master Builders Ass'n v. Pacific Northwest Elec. Power & Conserv. Planning Coun., 786 F.2d 1359 (9th Cir.1986) (interstate compacts distinguished from federal agencies; federal APA applied pursuant to Congress' express directive), cert. denied, 479 U.S. 1059, 107 S.Ct. 939, 93 L.Ed.2d 989 (1987). Accord Klickitat Cy. v. Columbia River Gorge Comm'n, 770 F.Supp. 1419 (E.D.Wash.1991) (Congress intended the Commission to adopt state law). But see Klickitat Cy. v. State, 71 Wash.App. 760, 767, 862 P.2d 629 (1993) (Compact is an instrument of federal law).

Traditionally, review of zoning decisions has been subject to a standard under which we uphold the zoning determination "absent a clear showing of arbitrary, unreasonable, irrational or unlawful zoning action or inaction." Bishop v. Houghton, 69 Wash.2d 786, 792-93, 420 P.2d 368 (1966). Such arbitrary and capricious action is

willful and unreasoning action, without consideration and in disregard of facts or circumstances ... [W]here there is room for two opinions, action is not arbitrary and capricious when exercised honestly and upon due consideration, even though it may be otherwise felt that a different conclusion might be reached.

Bishop, at 794, 420 P.2d 368. In those cases, the court is reviewing the decision as it applies to a local zoning determination. Here, the Secretary of Agriculture created the interim guidelines, not the local government agencies, and the Commission is the ruling government body, not the local authority. Nonetheless, in our view, the interim guidelines are intended to act locally and, thus, be reviewed as is any other land use decision. Hence, our review is limited to determining whether the Commission's decision was arbitrary and capricious.

Tucker first argues that he is not bound by the final interim guidelines because the Commission is required to adopt regulations governing lot size and these regulations must be adopted in accordance with the procedures set forth in the Washington Administrative Procedure Act, RCW 34.05, before they can bind an applicant by a lot size restriction. He also alleges that the trial court abused its discretion in not allowing him to submit evidence on the lack of valid Commission regulations.

Congress anticipated the difficulty of administering a regional agency exercising authority in two legal sovereigns:

For purposes of providing a uniform system of laws, which, in addition to sections 544 to 544p of this title, are applicable to the Commission, the Commission shall adopt regulations relating to administrative procedure, the making of contracts, conflicts-of-interest, financial disclosure, open meetings of the Commission, advisory committees, and disclosure of information consistent with the more restrictive statutory provisions of either State....

16 U.S.C. § 544c(b). The legislative "Section by Section Analysis" of the Act provides:

The Commission must adopt a uniform set of laws relating to administrative procedure and the functioning of the Commission. In order to ensure that the Commission members are following the laws of his or her own state, the Commission is directed to adopt the law of either Washington or Oregon, whichever is more restrictive in scope.

132 Cong.Rec. 15628. Accordingly, the Commission adopted a set of rules for administrative procedure. ⁶ Tucker does not assert that the Commission violated these procedural rules. Accord California Tahoe Regional Planning Agency v. Sahara Tahoe Corp., 504 F.Supp. 751, 752 (D.Nevada 1980) ("The very nature of the body, a political subdivision independent of the states that conceived it, suggests that the agency should have inherent powers to adopt policies of review that best carry out its purposes."); State of California ex rel. Younger v. Tahoe Regional Planning Agency, 516 F.2d 215, 218 (9th Cir.1975) ("the Compact and the TRPA are sui generis offsprings of a marriage between sovereign partners, each extremely reluctant to relinquish its sovereignty over a portion of its territory"), cert. denied, 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 97 (1975). But see Seattle Master Builders, 786 F.2d at 1371 ("To the extent that the Council functions as a compact, it is considered the state-created agency of each state.").

As to Tucker's claim, the Act specifically provides that the Commission must evaluate applications such as Tucker's under the standards and purposes contained in the Act. 16 U.S.C. § 544h(c). ⁷ These standards and purposes are: the context of the proposed action; its intensity; its relationship with other similar actions; proven mitigation measures; and the protection and enhancement of the scenic, cultural, recreational and natural resources of the Scenic Area. 16 U.S.C. §§ 544(a), 544a. The Commission's final order reflects its consideration of these directives in reaching its decision on Tucker's application. The Commission need not adopt and implement specific land use regulations as a prerequisite to exercising its review functions under the Act. In fact, no provision authorizes the Commission to adopt land use regulations. Rather, the Act provides that the Commission is to apply the interim guidelines, which Tucker does not claim it adopted in an unlawful manner. Here, the Commission's order reflects its proper consideration of Tucker's application. Nothing suggests that it acted in an arbitrary and capricious manner.

Tucker's claim that the trial court abused its discretion in not allowing him to submit evidence of the absence of Commission regulations fails for the same reasons. Nothing in the Act requires or allows the...