W. Birkenfeld Trust v. Bailey

• Decision Date: 27 May 1993
• Docket Number: No. CY-92-3062-AAM.,CY-92-3062-AAM.
• Citation: 827 F. Supp. 651
• Court: U.S. District Court — District of Washington
• Parties: The W. BIRKENFELD TRUST, a Washington Trust, et al., Plaintiffs, v. Barbara BAILEY; et al., Defendants.

827 F. Supp. 651

The W. BIRKENFELD TRUST, a Washington Trust, et al., Plaintiffs, v. Barbara BAILEY; et al., Defendants.

No. CY-92-3062-AAM.

United States District Court, E.D. Washington.

May 27, 1993.

COPYRIGHT MATERIAL OMITTED

Michael Haglund, Haglund & Kirtley, Portland, OR, for plaintiffs.

Ted A. Roy, Roy & Pell, Yakima, WA, local counsel for plaintiffs.

Lawrence Watters, Columbia River Gorge Commission, White Salmon, WA, for defendants Columbia River Gorge Commissioners.

Jim Johnson, Senior Asst. Atty. Gen., Washington Office of the Atty. Gen., Olympia, WA, for State of Wash.

Eric S. Gould, Dept. of Justice, Washington, DC, for Federal defendants.

David Swartling, Mill Cogan Meyers Swartling, Seattle, WA, Stephanie Striffler, Martin Dolan, Trial Div., Salem, OR, for State of Or.

Gary K. Kahn, Reeves, Kahn & Eder, Portland, OR, for Proposed Intervenor Friends of the Columbia Gorge.

Robert Leick, Stevenson, WA, Daniel R. Ritter, Davis Wright Termaine, Seattle, WA, for Skamania County.

Gerald A. Mastosich, Goldendale, WA, P. Stephen DiJulio, Foster Pepper & Shefelman, Seattle, WA, for Klickitat County.

ORDER GRANTING MOTION TO DISMISS

McDONALD, District Judge.

This civil action for declaratory and injunctive relief is brought by several landowners within the Columbia River Gorge to challenge the statutory and constitutional validity of the Final Management Plan for the Columbia River Gorge National Scenic Area. The Gorge Commissioners, the Friends of the Columbia River Gorge, and the federal defendants filed three separate motions to dismiss the action for lack of jurisdiction. A hearing on the matter was held on April 1, 1993, in Yakima, Washington. For the reasons stated below, the motions to dismiss are granted.

BACKGROUND OF THE GORGE ACT

The Columbia River Gorge National Scenic Area Act, 16 U.S.C. §§ 544-544p, was enacted by Congress in November 1986 for the purposes of enhancing the scenic, cultural, recreational, and natural resources of the Columbia River Gorge and protecting and encouraging economic growth in the Gorge area. 16 U.S.C. § 544a. To accomplish these goals, the Act created the Columbia River Gorge National Scenic Area and established an elaborate mechanism for the regulation of land use and development within the Scenic Area. The Act envisions a partnership between the federal, state and local governments. The Scenic Area is divided into three basic land classifications: Special Management Areas (SMAs) which are administered by the United States Forest Service; General Management Areas (GMAs) which are administered by the Columbia River Gorge Commission; and exempt urban areas.

The Columbia River Gorge Commission (Commission) is a regional agency created pursuant to a bi-state compact between Oregon and Washington. The thirteen-member Commission is comprised of three Oregon residents appointed by the Governor of Oregon, three Washington residents appointed by the Governor of Washington, one resident from each of the six counties within the Scenic Area,¹ to be appointed by the governing body of each of the respective counties, and one ex officio, nonvoting member who is an employee of the Forest Service. The compensation of the Commission members is determined by state law and is paid from funds provided to the Commission by the states of Oregon and Washington. 16 U.S.C. § 544c.

Under the Act, the Forest Service is to conduct a resource inventory and recreation assessment for the special management areas and to develop land use designations for the SMAs based on those studies. 16 U.S.C. § 544f. The Commission is responsible for completing a resource inventory,² economic opportunity study³ and recreation assessment⁴ for the entire Scenic Area. The Commission's assessment must incorporate without change the studies completed by the Forest Service for the SMAs. The Commission must also develop land use designations for the use of non-federal lands within the Scenic Area, based on the results of its resource inventory. After all studies are completed and the land use designations are made, the Commission is required to adopt a final management plan for the Scenic Area which incorporates without change the Forest Service's land use designations for the SMAs.

Upon adoption of the final management plan, the Commission is to submit the plan to the Secretary of Agriculture for review. If the Secretary finds that the plan is consistent with the standards prescribed for the plan and the purposes of the Act, he shall concur to that effect. 16 U.S.C. § 544d. The plan is then forwarded to the six counties which must adopt land use ordinances consistent with the plan for non-federal lands in both GMAs and SMAs. The counties' proposed land use ordinances for GMAs are to be reviewed for consistency by the Commission. Land use ordinances for SMAs are to be initially reviewed by the Commission, but final concurrence is to be given by the Secretary of Agriculture. If any county, after 270 days of receiving the final management plan, fails to adopt a land use ordinance consistent with the plan's land use designations for GMAs or SMAs, the Commission must make and publish a land use ordinance for the use of non-federal lands in such county within the boundaries of the Scenic Area or SMA, excluding the urban areas. 16 U.S.C. §§ 544e(c), 544f(a)(1). The Act provides for public hearings and comment prior to the final adoption of the management plan and the final adoption of land use ordinances.

Land use ordinances for GMAs become effective upon approval of the Commission. Land use ordinances for SMAs become effective upon concurrence by the Secretary, or if no concurrence is obtained, upon adoption of the ordinance by a vote of two-thirds of the Commission. If the Secretary does not concur in any land use ordinance approved or adopted by the Commission, the appropriation of funds pursuant to § 544n is denied to the relevant county. § 544f(n).

FACTS RELEVANT TO THE INSTANT ACTION

A Final Management Plan ("the Plan") was adopted by the Commission on October 15, 1991, and delivered to the Forest Service on November 18, 1991. Secretary of Agriculture Edward Madigan found the plan to be consistent with the standards and purposes of the Act, but was troubled by the lack of deference provided for private property rights. He expressed his concerns as follows:

While it is clear that the Act, by its nature, abridges much of the freedom of action normally accorded property owners in the interest of protecting the Gorge, the management plan gives no indication that property rights will be given due weight in the many "gray area" decisions that will have to be made in the future. I do not believe that Congress intended that property owners be infringed upon except to the extent necessary to protect the scenic beauty of the Gorge.

Letter from Edward Madigan, Secretary of Agriculture, to Stafford Hansell, Chairperson, Columbia River Gorge Commission (February 13, 1992). Because of these concerns, the Secretary conditioned his concurrence upon "modification of the plan to reflect that the Commission will utilize its discretion to maximize the protection of property rights within its statutory mandate to protect and enhance the scenic beauty of the Gorge." Id. The plan was to be implemented after modification, without an additional consistency finding by the Secretary.

The Gorge Commission forwarded the Plan to the six counties on April 14, 1992. The delivery of the Plan to the counties triggered a 60-day period during which each county was to advise the Gorge Commission whether it would proceed to adopt a land use ordinance consistent with the Plan. The Commission has authority to intercede as the local zoning authority for any county which fails to respond within the 60-day period or which fails to adopt an ordinance consistent with the Act. §§ 544e, 544f.

Klickitat County advised the Commission that it would not adopt the Final Management Plan. Skamania and Wasco Counties served notice of intent to adopt the Plan, but expressed reservations about the taking implications of the open space designations. Hood River County served notice of intent to adopt the plan, except for the open space designations.

On May 15, 1992, the plaintiffs⁵ commenced this action against the Commission, the states of Oregon and Washington, the United States Forest Service, and the Secretary of Agriculture, challenging the statutory and constitutional validity of the open space designations in the Plan. Three amended complaints have been filed since the commencement of the action. The First Amended Complaint added two claims based on the same underlying facts. The Second Amended Complaint added Hood River, Klickitat, Wasco and Skamania Counties as defendants to the action.⁶ The Third Amended Complaint dropped the Commission and the states of Oregon and Washington as defendants and substituted the thirteen individual members of the Commission. This third amendment followed the Ninth Circuit's ruling in Broughton Lumber Company v. Columbia River Gorge Commission, 975 F.2d 616 (9th Cir.1992), which held that the Gorge Act did not abrogate the states' Eleventh Amendment immunity and that the Commission's waiver of sovereign immunity in state courts did not act as a waiver of its Eleventh Amendment immunity in federal courts.

The Third Amended Complaint sets forth five claims for declaratory and other injunctive relief. The first and second claims are brought pursuant to 42 U.S.C. § 1983 and seek a declaratory judgment that the Commissioners violated the Fifth and Fourteenth Amendments by adopting a Final Management Plan that contains no mechanism under which landowners can seek compensation for the takings effected by the Plan. Specifically, plaintiffs claim that a bi-state compact agency like the Commission, which is without the powers of condemnation or taxation, acts unconstitutionally when it imposes open space or...