Tom Wood v. D.C. River Gorge Comm'n

236 Or.App. 479

238 P.3d 378

FRIENDS OF the COLUMBIA GORGE, INC.; Columbia Riverkeeper; Friends of Mount Hood; Futurewise; Adventure Cruises; Mt. Hood Hamlet Bed & Breakfast; Laurie Balmuth; David Berger; Lydie Boyer; Ron Carroll; Joan Chase; Susan Garrett Crowley; Kathleen Fitzpatrick; Jurgen Hess; Sherri Irish; Larry Keister; Chris Lloyd; Ken Maddox; Pat Meeks; Sherry Meier; Blayney Myers; Mary Repar; Tom Rousseau; Paul Smith; Dawn Stover; Carol Taylor; Jim Weaver; Judith Werner; Mary Wiley; Polly Wood; and Tom Wood, Petitioners,

v.COLUMBIA RIVER GORGE COMMISSION, Respondent.

PA0601; A139921.

Court of Appeals of Oregon.

Argued and Submitted May 10, 2010.

Decided Aug. 9, 2010.

COPYRIGHT MATERIAL OMITTED.

Gary K. Kahn, Portland, argued the cause for petitioners. With him on the briefs was Reeves, Kahn & Hennessy.

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

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

DUNCAN, J.

This is a land use case involving the site of a former lumber mill in Skamania County, Washington, across the Columbia River from Oregon. The site is located within the Columbia River Gorge National Scenic Area (the scenic area) and is subject to the scenic area's land use management plan. Petitioners seek judicial review of a final order of the Columbia River Gorge Commission (the commission) amending the management plan to make it possible to convert the mill site to a recreation resort.

On judicial review, petitioners make three assignments of error. In one, they assert that the commission lacked the authority to amend the management plan because conditions in the scenic area had not significantly changed. In a second, they assert that the amendment is inconsistent with the purposes and standards of the Columbia River Gorge National Scenic Area Act (the Act). 16 U.S.C. §§ 544-544p. In a third, they assert that the commission inappropriately determined that the mill site contains an existing industrial use, a determination that, according to petitioners, can only be made by Skamania County. For the reasons explained below, we affirm.

I. BACKGROUND

Recent opinions by this court and the Supreme Court have discussed in some detail the statutory and regulatory framework governing actions by the commission. ¹ Before addressing petitioners' assignments of error, we briefly recount that background as it is pertinent to the issues presented in this case. We then describe the facts that gave rise to this dispute. We supplement that information as necessary in our discussion and resolution of each of petitioners' individual assignments of error.

A. Statutory and Regulatory Framework

The scenic area encompasses roughly 292,000 acres and includes portions of six counties, Multnomah, Hood River, and Wasco counties in Oregon and Clark, Skamania, and Klickitat counties in Washington. It was created in 1986 by the Act. The Act has two purposes:

“(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. Thus, the first and primary purpose of the Act is to protect and enhance the resources of the gorge, and the secondary purpose is to support the economy of the gorge area by encouraging growth in existing urban areas and by otherwise allowing economic development, but only in a manner that is consistent with the first purpose.

As authorized by the Act, Oregon and Washington entered into an interstate compact and created the commission, a regional agency with regulatory authority over the scenic area. See ORS 196.150; RCW 43.97.015 (reflecting ratification of the compact in Oregon and Washington, respectively). The Act charges the commission with developing, implementing, and administering a management plan for the scenic area, with the concurrence of the Secretary of Agriculture (the Secretary). The Act divides the scenic area into three types of subareas: urban areas, which are not subject to the scenic area regulations in the management plan; “special management areas” (SMAs), over which the Secretary has primary responsibility; and the remaining area, which is referred to as the “general management area” (GMA). ² The Act provides that, “[n]o sooner than five years after adoption of the management plan, but at least every ten years, the Commission shall review the management plan to determine whether it should be revised.” 16 U.S.C. § 544d(g). It also provides that the commission may amend the management plan outside of the “usual” revision cycle:

“ If the Commission determines at any time that conditions within the scenic area have significantly changed, it may amend the management plan. The Commission shall submit amendments to the management plan to the Secretary for review, in accordance with the provisions of this section for adoption of the management plan.”

16 U.S.C. § 544d(h) (emphasis added). The commission adopted an administrative rule setting forth additional requirements for amending the plan, which provides, in part:

“ The Commission must find the following criteria are satisfied before it approves an amendment to the Management Plan:

“(1) Conditions in the Scenic Area have significantly changed. This means:

“(a) Physical changes that have widespread or major impacts to the landforms, resources, or land use patterns in the Scenic Area;

“(b) New information or inventory data regarding land uses or resources that could result in a change of a plan designation, classification, or other plan provision;

“(c) Changes in legal, social, or economic conditions, including those that affect public health, safety, or welfare, not anticipated in the Management Plan; or

“(d) A demonstrable mistake in the Management Plan that has resulted in significant impacts or that involves significant issues, such as, but not limited to, a land use guideline that is less protective of Gorge resources than the policies the guideline was intended to implement; a land use designation that does not conform to the corresponding designation policies; or two or more guidelines that cannot be reasonably reconciled.

“(2) The proposed amendment is consistent with the purposes and standards of the Scenic Area Act; and

“(3) No practicable alternative to the proposed amendment more consistent with the purposes and standards of the Scenic Area Act exists.”

OAR 350-050-0030 (emphasis added).

B. Factual Background

Broughton Lumber Company owns more than 260 acres of property in the scenic area, including an approximately 50-acre site that contains a former lumber mill. Milling began at the site in 1923. Major mill operations ceased in 1986, but the mill continued to operate at a reduced scale until 2001. Since then, the site has been used for light industrial activities, equipment maintenance, and storage. The site contains a complex of large industrial buildings. It is adjacent to a state highway and a state park.

1. The 1989 Resort Proposal and 1990 Resort Approval

In 1989, approximately three years after major mill operations at the site had ceased, Broughton filed a land use application with the commission seeking approval for development of a resort on the mill site. The director of the commission evaluated the application and determined that “the resort as proposed would not encourage hotels, motels, restaurants or retail shops to locate within urban areas” and was, therefore, inconsistent with the second purpose of the Act, as pertinent here: “to protect and support the economy” of the gorge area by “encouraging growth” in existing urban areas. The director also determined that the proposed resort was inconsistent with the standards for commercial development in section 6 of the Act. See 16 U.S.C. § 544d(d)(7) (providing that the management plan shall include provisions to “require that commercial development outside urban areas take place without adversely affecting the scenic, cultural, recreation, or natural resources of the scenic area”).

Broughton appealed the director's determination to the commission. In 1990, the commission affirmed the director's determination that the resort, as originally proposed, violated the second purpose of the Act, as well as the standards for commercial development. Instead of the original proposal, the commission approved a modified version. The original proposal included “approximately 62 units of overnight accommodations * * *, a headquarters building, a restaurant, retail shops and daytime and overnight parking.” The modified proposal called for reduction of the overnight accommodation units from 62 to 45 and elimination of the retail shops. It also called for removal of five former mill buildings and reduction of the scale of a proposed restaurant. Broughton never developed the resort, and the commission's 1990 decision approving the resort use expired in 1992.

2. The 1991 Management Plan

In 1991, the commission adopted the Management Plan for the Columbia River Gorge National Scenic Area (the management plan). ³ Most of the Broughton site is within the GMA and has been designated “commercial recreation.” The goal of the commercial recreation designation is to “[p]rotect and enhance opportunities for commercially owned, resource-based recreation and supporting commercial uses on lands containing such existing uses or lands on which such proposed uses have been deemed consistent with the Scenic Area Act.” Lands that qualified for designation as commercial recreation included privately owned lands in the GMA already devoted to resource-based recreation or that offered “outstanding” or “unique” opportunities for commercially owned resource-based recreation.

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