Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Comm'n

257 Or.App. 197

305 P.3d 156

FRIENDS OF THE COLUMBIA GORGE, INC., Petitioner,

v.COLUMBIA RIVER GORGE COMMISSION, Respondent.

A150010.

Court of Appeals of Oregon.

Argued and Submitted April 08, 2013.

Decided June 19, 2013.

Gary K. Kahn, Portland, argued the cause for petitioner. With him on the briefs were Reeves, Kahn, Hennessy & Elkins, and Nathan J. Baker and Friends of the Columbia Gorge.

Jeffrey B. Litwak argued the cause and filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and DUNCAN, Judge.

WOLLHEIM, J.

The management plan for the Columbia River Gorge National Scenic Area requires Oregon and Washington to develop “a regional air quality strategy” for the scenic area, which must be submitted to the ColumbiaRiver Gorge Commission (commission) for approval. In 2011, the states, pursuant to that obligation, submitted the Columbia River Gorge Air Study and Strategy, which the commission approved as the states' regional air quality strategy. Petitioner now seeks judicial review of the commission's decision to approve that air quality strategy. We affirm.

By way of brief introduction, Congress in 1986 passed the Columbia River Gorge National Scenic Area Act (the Scenic Area Act), Pub. L. 99–663, §§ 2–18, 100 Stat. 4274 (1986), now codified at 16 USC §§ 544–544p. The Scenic Area Act created the Columbia River Gorge National Scenic Area, which encompasses roughly 292,000 acres along the Columbia River in Oregon and Washington. As authorized by the Scenic Area Act, Oregon and Washington entered into an interstate compact and created the Columbia River Gorge Commission, which, in cooperation and consultation with the United States Secretary of Agriculture, is charged with developing, implementing, and administering a management plan for the scenic area. 16 USC §§ 544c, 544d; ORS 196.150; RCW 43.97.015.

As relevant to this case, the commission amended the existing management plan in May 2000 to include the following:

“Air quality shall be protected and enhanced, consistent with the purposes of the Scenic Area Act. The States of Oregon and Washington and the U.S. Forest Service shall:

“(1) Continue to monitor air pollution and visibility levels in the Gorge;

“(2) Conduct an analysis of monitoring and emissions data to identify all sources, both inside and outside the Scenic Area, that significantly contribute to air pollution. Based on this analysis, the States shall develop and implement a regional air quality strategy to carry out the purposes of the Scenic Area Act, with the U.S. Forest Service, the Southwest Air Pollution Control Authority and in consultation with affected stakeholders.

“The States and the Forest Service shall together provide annual reports to the Commission on progress made regarding implementation of this policy. The first report shall include a workplan and timeline for gathering/analyzing data and developing and implementing the strategy. The workplan and strategy shall be submitted to the Commission for approval.”

(Emphases added.)

Pursuant to the amended management plan, Oregon's and Washington's air quality agencies (collectively, the “air agencies”),¹ issued an air quality workplan in 2001. The workplan anticipated that a regional air quality strategy would be developed and ready for implementation by 2006, a date that was eventually pushed back.

On September 13, 2011, the air agencies presented the Columbia River Gorge Air Study and Strategy to the commission. In that document, the air agencies recommended that the commission approve a “key strategy of using requirements of the federal Regional Haze Program as the vehicle and framework for improving visibility in the Gorge.” The Regional Haze Program was created in 1999 by the Environmental Protection Agency (EPA) to improve visibility in designated national parks and wilderness areas (known as “Class I areas”). Under the program, states are required to develop and update regional haze plans every five years to assure reasonable progress toward meeting national goals concerning visibility impairment in Class I areas.

Although the Gorge itself is not a Class I area, the air agencies noted in the strategy that “it is closely located between two Class I areas, Mt. Hood and Mt. Adams, and will benefit from Oregon and Washington's Regional Haze Programs.” The air agencies explained that “the sources contributing to haze in the Gorge are the same sources that contribute to haze across the entire Northwest,” and that “tying visibility improvement in the Gorge to the Regional Haze Program provides an on-going regulatory framework for haze reduction and checkpoints for the Gorge strategy through a coordinated visibility improvement effort across multiple states.” Thus, the air agencies “recommend[ed] specifically tracking Gorge air quality each time the Regional Haze Plan is updated to ensure that the regional strategies continue to benefit air quality in the Scenic Area.” The commission voted to approve the recommended strategy.

On judicial review, petitioner urges us to remand the commission's decision approving the regional air quality strategy. Petitioner presses two overarching themes: First, the Columbia River Gorge Air Study and Strategy is a “strategy” in name only and does not possess any of the necessary features of a true strategy, such as substantive goals, prescriptive criteria, binding measures, or incentive programs. In fact, petitioner argues, the strategy is little more than a summary of the preexisting Regional Haze Program, which was not designed for the Gorge. Second, petitioner argues that, even assuming that the document could be characterized as a “strategy,” it nonetheless fails to carry out the essential requirements of the management plan and the Scenic Area Act i.e., it neither protects nor provides for the enhancement of air quality or the scenic, natural, cultural, and recreational resources of the Gorge. Consequently, petitioner maintains, the commission's decision in this case is inconsistent with the management plan and violates the Scenic Area Act. SeeORS 196.115(3)(d) (the reviewing court shall remand when the commission's exercise of discretion is “(B) [i]nconsistent with an agency rule, an officially stated agency position or a prior agency practice, unless the inconsistency is explained by the agency,” ² or “(C) [o]therwise in violation of a * * * statutory provision”).

In response, the commission argues that it properly exercised its discretion to approve the Columbia River Gorge Air Study and Strategy, and that nothing in the management plan or the Scenic Area Act requires that the regional air quality strategy include regulatory provisions, rule proposals, or any of the other items that petitioner says are necessary. In the commission's view, the mere fact that petitioner wants a different strategy is not a basis for remanding the decision. We agree with the commission.

As an initial matter, we have little difficulty concluding that the Columbia River Gorge Air Study and Strategy is a “strategy” within the meaning of the management plan—albeit not the strategy petitioner would have chosen. As set forth above, the management plan requires the air agencies to develop a “regional air quality strategy to carry out the purposes of the Scenic Area Act.” Because “strategy” is not defined in the management plan or in the Scenic Area Act itself, petitioner looks to the pertinent dictionary definition of strategy: “a careful plan or method,” Webster's Third New Int'l Dictionary 2256 (unabridged ed. 2002). “Plan” and “method,” petitioner asserts, are “defined, respectively, as ‘a detailed and systematic formulation of a large-scale campaign or program of action’ and ‘a procedure or process for attaining an object.’ ” (quoting Webster's at 1422, 1729–30). From those definitions,...