§ 6.3 - Special Considerations for Planning and Law in the National Scenic Area

• Jurisdiction: Washington

§6.3 SPECIAL CONSIDERATIONS FOR PLANNING AND LAW IN THE NATIONAL SCENIC AREA

Because land use planning in the National Scenic Area on nonfederal land is based on authority from an interstate compact, general principles of interstate compact law are an important aspect of scenic area law. This section discusses some of these principles.

(1) Federal law status of compacts and regulations

Article I, §10, of the United States Constitution expressly authorizes interstate compacts provided that Congress consents: "No state shall, without the consent of Congress ... enter into any agreement or compact with another state ..." The U.S. Supreme Court applies this compact clause to require consent only when the compact would impair the just supremacy of the federal government, U.S. Steel Corp. v. Multistate Tax Comm'n,434 U.S. 452, 98 S. Ct. 799, 54 L. Ed. 2d 682 (1978), or put noncompacting states at a disadvantage, Ne. Bancorp, Inc. v. Bd. Of Governors of the Fed. Reserve Sys.,472 U.S. 159, 176, 105 S. Ct. 2545, 86 L. Ed. 2d 112 (1985).

A compact must be treated as federal law if it has received the consent of Congress and its subject matter is appropriate for federal legislation. Cuyler v. Adams,449 U.S. 433, 438, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981). The Act contains Congress's preauthorization for Oregon and Washington to enter into the Columbia River Gorge Compact, 16 U.S.C. §544c(a), and the Ninth Circuit has determined that its subject matter is appropriate for federal legislation. 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). (The Gorge United case is discussed in §6.4(1), below.)

Regulations adopted pursuant to a compact may also have the status of federal law. However, case law is unclear whether the management plan and land use ordinances must also be treated as federal law. For example, federal courts have treated the regulations of the Tahoe Regional Planning Agency and the Atlantic States Marine Fisheries Commission (other interstate compact agencies) as federal law, but there are no similar cases involving the CRGC specifically. See, e.g., Rhode Island Fisherman's Alliance v. R.I. Dep't of Envtl. Mgmt.,585 F.3d 42 (1st Cir. 2009) (standing Atlantic States Marine Fisheries Commission management plan was federal law); Lake Tahoe Watercraft Rec. Ass'n v. Tahoe Reg'l Planning Agency (TRPA),24 F. Supp2d 1062, 1068-69 (E.D. Cal. 1998) (TRPA ordinance prohibiting discharge of unburned fuel and oil by carbureted two-stroke engines is federal law); Stephans v. Tahoe Reg'l Planning Agency (TRPA),697 F. Supp. 1149, 1152 (D. Nev. 1988) (characterizing 1987 Regional Plan as federal law and dismissing takings claim against TRPA to the extent it was based on state constitution rather than U.S. Constitution, because the regional plan preempts state law and state constitutional provisions). No court has expressly concluded that a compact agency's regulation is not federal law.

(2) A compact is a contract and a statute

An interstate compact is a contract between states. West Virginia ex rel. Dyer v. Sims,341 U.S. 22, 32, 71 S. Ct. 557, 95 L. Ed. 713 (1951); Green v. Biddle, 21 U.S. (8 Wheat.) 1, 40-41, 5 L. Ed. 547 (1823). It is also a statute because all compacts must be enacted by legislatures. See, e.g., Sullivan v. State Dep't of Transp.,550 Pa. 639, 708 A.2d 481 (1998) (Pennsylvania did not properly enter into the Driver License Compact by legislative delegation of authority to the state Secretary of Transportation to enter into the compact).

As a contract and a statute, principles of statutory and contract interpretation can apply. Statutory interpretation is discussed in §6.2(3)(b), above, and §6.4(2), below. Courts frequently apply contract interpretation principles when interpreting a compact; for example, the U.S. Supreme Court has held that a court may not order relief inconsistent with a compact's express terms, Texas v. New Mexico,462 U.S. 554, 564, 103 S. Ct. 2558, 77 L. Ed. 2d 1 (1983); usage of trade, Tarrant Regional Water Dist. v. Herrmann, 569 U.S.____, 133 S. Ct. 2120, 186 L. Ed. 2d 153 (2013); course of performance, Alabama v. North Carolina,560 U.S. 330, 130 S. Ct. 2295, 176 L. Ed. 2d 1070 (2010); and negotiation history, Oklahoma v. New Mexico,501 U.S. 221, 235 n.5, 111 S. Ct. 2281, 115 L. Ed. 3d 207 (1991). Courts also mention the contractual nature of a compact when determining if state law applies, as noted in §6.3(3), below.

One way these contractual principles apply to the Columbia River Gorge Compact is limiting the remedies available to a plaintiff to only those specified in the Act. The Act specifies the available remedies that a plaintiff may seek against the Gorge Commission and the U.S. Forest Service for claims arising under the Act, the Compact, or other National Scenic Area authorities. See, e.g., W. Birkenfeld Trust v. Bailey,827 F. Supp. 651, 665 (E.D. Wash. 1993) (stating, "The Act provides an elaborate set of administrative and judicial remedies" and denying a remedy not specified in the Act); Broughton Lumber Co. v. Columbia River Gorge Comm'n,975 F.2d 616, 621 (9th Cir. 1992) (affirming dismissal of claim for declaratory judgment not specified in the Act).

Because an interstate compact is a binding contract between states, one state may not unilaterally withdraw from a compact, unless the compact specifically allows the state to do so. If one state reneges on its obligations under the compact, the other party states are entitled to contractual remedies and other remedies, including equitable remedies. Kansas v. Nebraska, 574 U.S.____, 135 S. Ct. 1042, 191 L. Ed 2d 1 (2015) (approving a Special Master recommendation for disgorgement). Because the Gorge Compact does not contain express provisions permitting one state to unilaterally withdraw from the compact, both states must jointly agree to terminate the compact, and neither state may unilaterally withdraw.

(3) Relationship between a compact and state law

The interaction between an interstate compact, such as the Columbia River Gorge Compact, and state constitutions, as well as prior and subsequent statutes, is discussed below. Courts interpreting these issues have based their reasoning on the supremacy clause, U.S. Const. art...