The Columbia River Gorge National Scenic Area Act.

• Author: Watters, Lawrence
• Position: 1992 Ninth Circuit Environmental Review

1. Introduction

   The Ninth Circuit Court of Appeals decided two cases in 1992 interpreting the Columbia River Gorge National Scenic Area Act.(1) In Columbia River Gorge United v. Yeutter,(2) the court considered the first constitutional challenge to the Act, and to the interstate Compact(3) between Oregon and Washington that adopted it. In Broughton Lumber Company v. Columbia River Gorge Commission,(4) the court dealt with both the first claim concerning jurisdiction under the National Scenic Act and the first action for inverse condemnation against the regional or interstate agency created under the Act, the Columbia River Gorge Commission.

   In both cases, the court addressed significant questions of federalism, arising in the context of the interstate Compact. Under the terms of the Compact, Oregon and Washington agreed to use a regional approach and a uniform set of legal standards to govern the protection of natural resources, as well as the economy, along both sides of the Columbia River. These standards provide a comprehensive planning approach to the Gorge as a whole.(5)

   In both cases, the court established a framework for the interpretation of the Act and the Compact. The elements of the framework include adherence to the explicit provisions of the legislation as enacted by Congress, and precision in the use of legislative history to carry out the intent of the federal government and the states. This approach underscores the Ninth Circuit's recognition of the fundamental theme governing the Act and the Compact: the natural resources in the Gorge are protected by regional standards that transcend the prior law of Oregon and Washington.

2. Background

   The Columbia River marks the boundary between two states that each have their own tradition in the protection of natural resources and the environment. Washington has generally provided wide latitude to local government in the administration of regulatory programs for land use and development activities. Oregon has used a more centralized approach based on the application of mandatory statewide goals and policies.

   The divergence in these systems presented a unique challenge to planning, protection, and management of the natural resources that make up the Columbia River Gorge area. The Gorge is a distinct geographic region with a spectacular constellation of natural resources; but, due to fragmentation in authority and a diffusion in regulatory responsibility, a comprehensive approach to management of the area was not possible.(6)

   After years of negotiations and concerted efforts by both states, the federal government, and interested groups, a consensus was created for enactment of the Columbia River Gorge National Scenic Area Act in 1986.(7) The National Scenic Act provided one set of legal standards for management of the Gorge and the creation of a regional or interstate agency to implement the law.(8) The federal legislation was adopted by Oregon and Washington in the Columbia River Gorge Compact.(9) The Act and the Compact provide the federal government, Washington and Oregon, six counties, and four Indian tribes with a comprehensive structure for management of the Gorge as a region.(10)

3. Columbia River Gorge United v. Yeutter(11)

   In the first case, a group of property owners and an organization known as Columbia Gorge United (CGU) challenged the constitutionality of the National Scenic Act. They brought suit against the Secretary of Agriculture and the Gorge Commission, claiming the Act violated the federal and state constitutions. The district court granted summary judgment rejecting all of the plaintiffs' claims.(12)

   CGU filed the only appeal. In the Ninth Circuit, CGU argued the Act violated a list of provisions of the U.S. Constitution including the Commerce Clause, the Property Clause, the Compact Clause, the Tenth Amendment, and the Fifth Amendment entitlement to equal protection.(13) The principal position advanced by CGU was that the Act and the Compact were contrary to the intentions of Oregon and Washington. CGU claimed that "the states were coerced into accepting conditions laid down by Congress."(14) At the outset, the opinion of Judge Mary Schroeder rejected this line of argument, noting that the Attorneys General for both Oregon and Washington strongly maintained the legislation was the result of mutual cooperation between the federal government and the states to achieve a satisfactory result.(15)

   The legislative history of the Act and the Compact amply supports the conclusion of the court. Prior to its passage by Congress and approval by the President, the National Scenic Act was the subject of years of study, hearings, draft legislation, and initiatives, at both the state and national level.(16) The Act was the result of a consensus forged through participation by citizens, organizations, and officials at all levels of government.(17) The court also held that issues of fact relating to the alleged coercion had been resolved against CGU in findings that were not clearly erroneous.(18) Thus, the court addressed only issues of law in the decision.

   1. The National Scenic Act

      The court first examined the National Scenic Act. The Act created the Columbia River Gorge National Seenic Area.(19) The National Scenic Area extends eighty miles east from Portland and Vancouver, along both sides of the Columbia River, through the heart of the Gorge. The Act provided the consent of Congress to an interstate compact between Oregon and Washington which "regulates land use and development activities within the Scenic Area."(20) Congress' consent to the Compact was contingent upon the creation of a regional or interstate agency, the Columbia River Gorge Commission, with the authority provided in the Act.(21)

      The National Scenic Act directed the Gorge Commission to prepare a resource inventory, an economic opportunity study, and a recreation study.(22) The agency was required to develop land use designations for property in the general management areas (GMAs) of the Gorge.(23) The Secretary of Agriculture was charged to follow the same process for the special management areas (SMAs) where some of the most sensitive resources are located.

      The Act directed the Gorge Commission and the Forest Service to prepare a management plan for the National Scenic Area based on the resource inventory and the land use designations, consistent with the standards established by Congress in the legislation. The standards require the plan to protect and enhance agricultural lands, forest lands, open spaces, and recreation resources, and prohibit development from adversely affecting the scenic, cultural, recreation, and natural resources of the area.(27) The Act also required the Gorge Commission to incorporate into the plan, without change, the guidelines and land use designations made by the Forest Service for the SMAs.(26)

      Once the Secretary of Agriculture approves the plan, each county in the Gorge is authorized to adopt land use ordinances that are consistent with it.(29) The ordinances for the GMAs must be approved by the Gorge Commission, and the ordinances for the SMAs must be approved by both the Gorge Commission and the Secretary.(30) If a county decides that it will not adopt an ordinance, the Gorge Commission is required by the Act to do so in its place.(31) A county may choose at a later point in time to adopt its own ordinance, subject to approval by the Gorge Commission and the Secretary.(32)

      In this way, the Act requires that all...