The Columbia River Gorge National Scenic Area and its implementation has been the subject of legal challenges, with both the U.S. Forest Service and the CRGC involved in defensive and affirmative litigation.
(1) Constitutionality of the Act
The most significant case upholding the constitutionality of the Act is Columbia River Gorge United v. Yeutter, 960 F.2d 110 (9th Cir.), cert. denied sub nom. Columbia River Gorge United v. Madigan, 506 U.S. 863 (1992). In that case, the U.S. Court of Appeals for the Ninth Circuit held that the Act did not violate the commerce clause, the Tenth Amendment, or the equal protection clause, and the Columbia River Gorge Compact was held valid under the compact clause of the U.S. Constitution.
(2) Applicable law for judicial review of CRGC actions
The standards of review for CRGC actions are discussed below.
(a) Application of Oregon and Washington APAs
Or. Rev. Stat. §196.115 prescribes specific standards of review for CRGC actions. These standards are identical to the standards of review specified in Or. Rev. Stat.§183.482 for contested cases. Or. Rev. Stat.§196.115 does not include any standards similar to the standards of review in Or. Rev. Stat.§183.400 for rulemaking or similar legislative actions. The Oregon Court of Appeals has concluded that the standards of review specified in Or. Rev. Stat. §196.015, although "a less than perfect fit" for a CRGC action that is legislative in nature, nonetheless are applicable to the review of such actions. Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm'n, 215 Or. App. 557, 568, 171 P.3d 942 (2007), aff'd in relevant part, rev'd in part, 346 Or. 366, 374-75, 213 P.3d 1164 (2009); see also Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm'n, 218 Or. App. 261, 179 P.3d 700 (2008), aff'd, 346 Or. 415, 213 P.3d 1243 (2009); Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm'n, 218 Or. App. 232, 179 P.3d 706 (2008), aff'd, 346 Or. 433, 213 P.3d 1191 (2009).
Courts in Washington also typically apply the standards of review from the Washington Administrative Procedure Act (APA), Chapter 34.05 RCW. In Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm'n, 126 Wn. App. 363, 369-70, 108 P.3d 134 (2005), the Washington Court of Appeals determined that it must apply the standards of review found in the Washington APA. However, the Court of Appeals also stated that it would not rely on the CRGC's administrative procedure rules because they were not included in the Washington Administrative Code (WAC) compilation.
| Comment: | The Washington Court of Appeals correctly observed that the CRGC's rules do not appear in the WAC, but this is a quirk in Washington's implementation of the Act. The CRGC files its rules with the Washington Code Reviser; however, the Code Reviser does not publish the CRGC's rules in the WAC compilation because they are not state regulations. |
(b) Application of federal law standards
There are two exceptions to the application of the states' administrative procedure acts. Most significantly, when the CRGC interprets the Act, the Oregon and Washington state courts and the federal courts all apply Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), to CRGC interpretations of the Act. See Klickitat Cnty. v. Columbia River Gorge Comm'n, 770 F. Supp. 1419, 1427 (E.D. Wash. 1991); Columbia Gorge United v. Yeutter, No. CV 88-1319-PA, 1990 WL 357613, 20 E.L.R. 21162 (D. Or. 1990), aff'd, 960 F.2d 110 (9th Cir.), cert. denied, 506 U.S. 863 (1992); Friends of the Columbia Gorge, 346 Or. at 377-84; Skamania Cnty. v. Columbia River Gorge Comm'n, 144 Wn.2d 30, 42-43, 26 P.3d 241 (2001); Skamania Cnty. v. Woodall, 104 Wn.App. 525, 16 P.3d 701, review denied, 144 Wn.2d 1021 (2001), cert. denied, 535 U.S. 967 (2002); Friends of the Columbia Gorge, 126 Wn.App. at 369.
The second exception is when the CRGC interprets its own rules. The Oregon Court of Appeals and Supreme Court apply both state law and Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997), for the principle that an agency's construction of its own regulations is entitled to substantial deference. Friends of the Columbia Gorge, 346 Or. at 410. This is only the second time that any state or federal court has applied federal methodology to a compact agency's construction of its own regulations. The first case was unreported: Andersen v. Columbia River Gorge Comm'n, No. 18370-6-II (Wn. App. Dec. 6, 1996) (unpublished). [Note: Washington GR 14.1(a) prohibits citation of an unpublished case for authority.] In all other cases, Washington courts have applied Washington state law principles to cases involving the CRGC's construction of its own rules, perhaps reflexively because parties have not argued for federal deference.
| Practice Tip: | Because Washington courts have not had an opportunity to consider the application of Auer since the Oregon Supreme Court's decision, it is possible that a Washington court will consider the application of Auer in the next Washington case involving the CRGC's construction of its own rules. |
(3) Application of state and federal substantive law
Application of state and federal substantive law in CRGC actions is discussed below.
(a) Application of SEPA and NEPA
In the first National Scenic Area case concerning the applicability of state law (and other federal law), Klickitat County sued the CRGC and U.S. Forest Service, seeking to compel (1) the CRGC to prepare an environmental impact statement (EIS) under Washington's State...
