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20 ELR 21162 | Environmental Law Reporter | copyright © 1990 | All rights reserved Columbia Gorge United-Protecting People and Property v. YeutterNo. 88-1319-PA (D. Or. May 23, 1990)The court holds that the Columbia River Gorge National Scenic Area Act, enacted in 1986 to establish land use development standards within the scenic area along the Columbia River in Oregon and Washington, is constitutional. The court first holds that plaintiffs, private landholders in areas covered by the Act whose land use proposals were denied, have standing to sue. However, the court also holds that the landowners' takings claims are not ripe for review because the federal government has not denied them just compensation, and they have not appealed to state court or used the process provided by the Tucker Act. The court then holds that the Act does not violate the Tenth Amendment, the commerce clause, the property clause, the compact clause, the due process clause, or the appointments clause. Finally, the court holds that the commission charged with implementing the Act did not abuse its discretion when it adopted certain definitional rules. Counsel for Plaintiff Counsel for Defendants Panner, J. Opinion Plaintiffs Columbia Gorge United Organization and 19 individuals who own land in the Gorge area bring this action against defendants United States Secretary of Agriculture ("Secretary") and the Columbia River Gorge Commission ("Commission"). Plaintiffs seek a declaration that certain portions of the Columbia River Gorge National Scenic Area Act ("the Gorge Act") are unconstitutional and an injunction prohibiting defendants from administering the Act. Plaintiffs contend that the Act is unconstitutional because it exceeds the constitutional grant of congressional power, because it violates the commerce clause, the property clause, the compact clause and the appointments clause, because the Gorge Act and the Compact deny electors equal protection of the law, because the Gorge Act denies plaintiffs due process of the law and because the Gorge Act and the Compact violate the supremacy and judicial power clauses of the Constitution. Plaintiffs also request certain members of the Commission be enjoined from deciding contested land development proposals and from implementing the Gorge Act. A court trial was held. I find for the defendants. This opinion comprises my findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a). Background1 Congress enacted the Gorge Act in 1986 and thereby established the Columbia River Gorge National Scenic Area ("the Scenic Area"). 16 U.S.C. § 544, Pub. L. 99-663, 100 Stat. 4302 (1986). The Scenic Area was established to protect and enhance scenic, cultural, recreational, and natural resources, and to protect the economy of the Scenic Area. 16 U.S.C. § 544a. The Act sets boundaries for certain land pockets within the Area, which run along both sides of the Columbia River and in Oregon and Washington. These pockets are designated "urban areas" ("UAs") and "special management areas" (SMAs") and include both publicly and privately held land. The undesignated parcels are referred to as "general management areas" ("GMAs"). Congress authorized the federal and state governments to promulgate land use plans and laws which regulate land development within the SMAs and GMAs. As of November 17, 1986, when the Gorge Act was enacted, the United States owned approximately 17 percent of Area lands. More than 68 percent of land in the Area was privately owned. In 1987, Oregon and Washington ratified the Columbia River Gorge Company ("Compact"), which incorporated the Gorge Act and established the Commission in accordance with the Gorge Act's requirements. ORS 390.420; Wash. Rev. Code § 43.97.020. During May and June 1987, the Governors of Oregon and Washington, and county commissioners within the Scenic Area appointed 12 voting members to the Commission. The Gorge Act sets forth use and development standards for land within SMAs and GMAs. 16 U.S.C. §§ 544(a), 544(d)(1)-(9). The Commission, with the Secretary, must then integrate these standards into a Special Area Management Plan ("Plan"). In crafting the Plan, the Secretary is to develop interim guidelines to ensure that the Area's lands are regulated consistently with the Act. 16 U.S.C. § 544f(f). The Forest Service promulgated such guidelines after public involvement and consultation with the Area counties and other agencies. On June 30, 1987, the Secretary issued Final Interim Guidelines ("FIGs"). These FIGs are to stay in effect until the Area counties adopt land use ordinances consistent with the Plan as mandated by the Gorge Act. 16 U.S.C. § 544h(a)(1). The Secretary and Commission must review and approve these ordinances for compliance with the Plan and the Act. If a county's ordinances fail to receive approval or if a county refuses to adopt such ordinances, the Commission enacts ordinances for the county consistent with the Plan. 16 U.S.C. § 544e(b)(1). During the interim period, the Secretary determines the standards for granting land use proposals. 16 U.S.C. § 544f(f). From the date of the Act's enactment through January 1, 1988, the Secretary, acting through the United States Forest Service, reviewed landowners' use proposals in the Scenic Area. Since January 1, 1988, the Commission has reviewed Scenic Area land use proposals that involve major development action or new residential development. The Commission's primary responsibility under the Act is to review all Area land use proposals that involve major development action or new residential development until the Plan is in place. The Secretary, acting through the United States Forest Service, reviews the balance of Area land use proposals. The Secretary also is authorized to acquire lands within the SMAs. The individual plaintiffs submitted proposals which were denied by the Commission's Executive Director. The individual plaintiffs had not used their land to grow forest products or to produce farm commodities, but the Commission considered plaintiffs' property as either agricultural or forest land. Although residential development is a permitted use for plaintiffs' lands under applicable county zoning ordinances, the Commission denied the proposals because they sought to convert agricultural or forest lands to rural residential land, in contravention of the Act. Plaintiffs Barbara Lee Hayes, Charles Kyer, Marilyn McCall, Twila Rothrock, Keith Johnson, and Norris Johnson own land within an SMA. Plaintiff Willard Gaul owns land within an SMA and had his land use proposal to construct a residence denied by the Forest Service. The Forest Service sent an opinion letter to Gaul advising him that the development he proposed was inconsistent with the purposes of the Act. Plaintiffs Richard Miller and Roberta Miller own land within [20 ELR 21163] an GMA. Plaintiffs Jack Kapp, David Kapp, Shirley Azure, Johnny Olson, Russell Pollard, LaDonna Pollard, Richard Templin, Ellen Templin, and Frank Windust own land with within GMAs and had their respective residential development land use proposals denied by the Commission Executive Director ("Director"). Plaintiff Cynthia Williams owns land within an GMA and had her land use proposal approved by the Director. The Director eventually approved the Pollards' resubmitted application with conditions. The Commission heard appeals from plaintiffs whose proposals had been denied by the Director. At these hearings, the Commission voted to affirm the Director's denials of plaintiffs' development proposals, except in the Windust's case, in which the Commission reversed. When the Commission affirmed the Director's decisions, the Commission voted unanimouslyto affirm in all but two instances. The Commission voted 9-1 to affirm the Director's decision to deny Templin's development proposal and 6-5 to affirm the Director's decision to deny the Pollards' development proposal. At these contested case hearings, the Director defended the position taken in his order, pursuant to a rule adopted by the Commission on November 14, 1988. At three hearings, an Oregon Assistant Attorney General was present as legal counsel for the Commission. The Act entitles land owners whose development proposals were denied by the Commission to appeal to state court. 16 U.S.C. § 544m. Plaintiffs have not sought review of the Commission's decisions to deny their proposal in state court. The United States has not purchased or condemned any of plaintiffs' land. The Act provides that individuals who use or seek to use their lands in a manner inconsistent with the Act may be subject to civil penalties or to having the government acquire their land. 16 U.S.C. § 544m(a)(3). Columbia Gorge United Organization — Protecting People and Property ("CGU") is a nonprofit corporation whose members primarily are private landowners in Area counties. The corporate purpose of CGU is "to organize a united effort to oppose federal control of the Columbia Gorge." Stipulation no. 13. CGU bylaws mandate that each CGU Board Director be an owner of residential property within the Area. Several, but not all, of the plaintiffs are CGU members. CGU does not own any land within the Area. Friends of the Columbia Gorge ("Friends"), an organization "which was a moving force in initiating and obtaining passage" of the Gorge Act, has intervened in this action as of right. Stipulation no. 24. Its members do not participate in determining the policy of the organization other than to confirm prospective Board members. Director Richard Benner, Chairperson Stafford Hansell, and Commission members Don Clark, Dave Cannard, and Barbara Bailey are former Friends members. Three Commission members served on the Friends Board, two are Friends founders, one has a spouse who was a member, and one has a spouse who served on the Board until January 1989 and who still is a member. Cannard contributed to Friends in addition to paying annual dues and made an interest-free loan to Friends in the amount of approximately $ 11,000 in 1986. Friends paid the loan back on November 10, 1988. All Commission members have resigned from Friends as of October 1988. Members Clark, Cannard, Hansell, and Bailey resigned their memberships after a motion was filed with the Commission on September 26, 1988 to disqualify them from presiding at quasijudicial hearings in which Friends had participated as an interested party. These same four members did not announce their connection with Friends or withdraw from serving on appeals to the Commission from the Director's denials of four of plaintiffs' development proposals. The Pacific Legal Foundation ("PLF") and the National Inholders' Association ("NIA") are amici curiae, in support of plaintiffs' position. Plaintiffs seek a declaration that the Gorge Act, the Compact, and various regulations and guidelines promulgated under the Act and the Compact violate the United States, Oregon, and/or Washington Constitutions. Plaintiffs also seek an injunction prohibiting implementation and administration of the Gorge Act and the Comact, all of which the Commission acted under in ruling on the proposals. Before the court considers the merits of a constitutional claim, the plaintiffs must demonstrate that they have standing as required by Article III of the United States Constitution. Valley Forge College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1981). "At an irreducible minimum, Art. III requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Id. at 472 (omitting quotes). To demonstrate standing the plaintiffs must establish that: 1) a personal injury exists or is threatened, 2) the injury is fairly traceable to the challenged action and 3) the injury is likely to be redressed by a favorable decision. Id. 1. Injury or Threat of Injury Caused by the Gorge Act. The individual plaintiffs own land in one of the three areas covered by the Act, and either the Director or the Commission has denied plaintiffs' requests for proposed uses of their property. The Commission denied plaintiffs' use of their land as they intended to use it, and they may be forced to sell their property to the federal government. If the plaintiffs use their land inconsistently with the Act they are subject to civil penalties. 16 U.S.C. § 544m(a)(3). The plaintiffs, thus, have been injured or are threatened to be injured by the implementation of the Gorge Act. Columbia Gorge United Organization — Protecting People and Property ("CGU") is a nonprofit corporation whose members primarily are private landowners in Area counties. A membership organization has standing as a representative of its members. Warth v. Seldin, 422 U.S. 490, 511 (1975). "The organization must allege that the members are suffering immediate or threatened injury as a result of the challenged action." Id. CGU bylaws mandate that each CGU Board Director own residential property within the Area. Several, but not all, of the individual plaintiffs/landowners are GCU members. CGU's members are directly affected by the Act and they individually have the potential to be injured or have been injured by the enforcement of the Act. Plaintiffs request the court to declare the Act unconstitutional and enjoin the Commission from enforcing the Act. If the Act is declared unconstitutional then plaintiffs will be free to make use of their property in accordance with general state and local zoning laws. Residential development is permitted under the local zoning laws; thus plaintiffs could develop their land as they desired. Plaintiffs' requests for relief will redress their injuries, and thus they have standing to bring their claims. The defendants specifically assert that the plaintiffs' takings claim is not ripe for review. Plaintiffs assert that the Act took a scenic easement on their land without requiring just compensation. "The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation." Williamson County Planning Comm'n v. Hamilton Bank of Jackson City, 473 U.S. 172, 191 (1985). The federal government has not taken any land. By the passage of the Act the United States is not vested with all rights, title, and interest in any land in the Gorge that is not already the property of the United States. Cf. Redwood National Park Act, 16 U.S.C. § 79c(b)(1968). The Gorge Act and the Compact permit the United States to take property only after a lengthy procedural process. 16 U.S.C. § 544e-h. Before the Secretary can take lands in an SMA, by purchase or condemnation, the Commission must review the landowners development proposal and declare it inconsistent with the Act. 16 U.S.C. § 544g(a)-(b). The land owner is entitled to appeal the Commission's decision to state court. The federal or state government may purchase the land or bring an action for condemnation. The land owner also can assert his rights in the United States Claims Court once the federal government has purchased or condemned the property. Tucker Act, 28 U.S.C. § 1491. Plaintiffs have not exhausted their administrative or judicial remedies and have not received compensation for land that the Commission declares inconsistent with the Act. See Williamson County [20 ELR 21164] Planning Comm'n, 473 U.S. at 194-195. I find that because the federal government has not denied plaintiffs just compensation, and the plaintiffs have not appealed to state court or used the process provided by the Tucker Act, 28 U.S.C. § 1491, their takings claims are not ripe for review. B. Violation of the Tenth Amendment Plaintiffs contend that when Congress enacted the Gorge Act, Congress exceeded its powers enumerated in the United States Constitution. The tenth amendment reserves powers to the states that are not delegated to the United States by the Constitution. U.S. Const. amend. X. Plaintiffs assert that the power to enact zoning laws is vested in the states and the municipalities and not in the federal government, and that local zoning is outside the scope of the congressional enumerated powers. Plaintiffs thus assert that the Gorge Act, the Final Interim Guidelines and the Company impose zoning on private land and violate the tenth amendment. Plaintiffs imply that the Gorge Act completely usurps the states' right to enact zoning laws. Congress or the federal agencies, however, do not directly dictate the zoning laws to the private property owners. The Gorge Act establishes criteria and guidelines to advance Congress' goal to preserve and enhance the scenic, cultural, recreational and natural resources of the Gorge, 16 U.S.C. § 544d, and provides federal assistance in enforcing the Gorge Act. Oregon and Washington and the local governments primarily enforce the Gorge Act through the Plan and local ordinances. When Oregon and Washington enacted the interstate compact, the states voluntarily agreed to the congressional standards. 16 U.S.C. § 544o(d); ORS 390.415; Rev. Wash. Code § 43.97A. The governors of Oregon and Washington appoint members of the Commission. The Commission members adopt the final version of the management plan and the Commission rules on whether a private landowner's proposed use of land within GMAs and SMAs is consistent with the management plan. The counties enact zoning laws that are consistent with the management plan, the Compact, and the Gorge Act. If the counties do not adopt land use ordinances consistent with the Gorge Act the Commission will enact ordinances consistent with the Plan and the Compact. Oregon and Washington, who act through the Commission, and local governments continue to enforce the zoning laws. The federal government has limited authority to regulate zoning and development in the Scenic Area. If the state or local governments do not enact ordinances consistent with the Gorge Act, the Secretary has only the authority to withhold funding granted to the states for development consistent with the Congress' goal of protecting the Scenic Area. 16 U.S.C. §§ 544i(b), 544n(c). Only during the interim period, the federal government determines the standards for which developmental proposals are consistent with the Gorge Act. 16 U.S.C. §§ 544h, 544m. Once the Compact was formed and the laws regarding the Gorge are enacted, the federal government manages only land within the SMAs. 16 U.S.C. §§ 544f, 544g(a)(1). The United States can also obtain injunctive relief or withhold funding from violators of the Gorge Act. 16 U.S.C. §§ 544m(b)(5)(A) & 544n(C). Oregon and Washington continue to enact and regulate zoning laws. Congress has not usurped Oregon's and Washington's power to regulate private land use, but sets guidelines for the states to follow. Congress has not violated the tenth amendment. 2. Implied Congressional Powers Plaintiffs then assert that constitutional powers, implied or direct, do not exist that authorize Congress to carry out the Gorge Act. Congress has implied powers which are necessary and proper to carry into effect its enumerated powers. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 420 (1819). Plaintiffs contend that the Gorge Act is beyond the scope of the commerce clause because residential land use is immobile and local, and thus does not affect interstate commerce. Plaintiffs first assert that since Congress did not make any findings that zoning private land in the National Scenic Area was necessary to regulate interstate commerce, Congress cannot derive its power through the commerce clause. Congress, however, need not make specific findings in the Act. Katzenbach v. McClung, 379 U.S. 294, 299 (1964). As in Katzenbach, while debating the act at issue, Congress considered the impact the act would have on interstate commerce. See 132 Cong. Rec. H11121-22 (daily ed. Oct. 16, 1986) (statements of Reps. AuCoin and Wyden); 132 Cong. Rec. S15636 (daily ed. Oct. 8, 1989) (statements of Sen. Hatfield). The Gorge Act is constitutional under the commerce clause if a rational basis exists for finding that the regulated activity affects interstate commerce and the means by which Congress regulates the activity are reasonably adapted to Congress' goal. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276-77 [11 ELR 20569] (1981). The activity that Congress regulates does not have to move through interstate commerce; it only has to affect interstate commerce. Fry v. United States, 421 U.S. 542, 547 (1975). The legislative record supports a finding that the establishment of a national scenic area affects interstate commerce. First, by enacting the Gorge Act, which was adopted by an interstate compact between the states of Washington and Oregon, Congress intended to protect the scenic, cultural, recreational, and natural resources of the Gorge. People from all over the world come to Oregon and Washington to enjoy the beauty of the Gorge and use the rivers and mountains for recreation, including windsurfing, hiking, bicycle riding, and dining. See 132 Cong. Rec. S15637 (Oct. 8, 1986) (Senator Hatfield). Second, Congress intended to regulate the competing economic interest in the Scenic Area. 132 Con. Rec. S15637-39 (Oct. 8, 1986) (testimony concerning the timber industry and protecting anadromous fisheries and the regional fishing economy). Finally, the Scenic Area includes two states bisected by a navigable waterway. Rational basis clearly exists for finding that the establishment of the Scenic Area affects interstate commerce. A nexus must exist between regulating the development of the Scenic Area and Congress' goal. Hodel, 452 U.S. at 276. Congress specified that the purpose of the Gorge Act is (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 further economic development . . . 16 U.S.C. § 544. Congress achieves its goals through the involvement of federal, state and local government instrumentalities in enforcing the Gorge Act. 16 U.S.C. § 544-544p (1987). To protect the Gorge and its economy, Congress has divided the Columbia Gorge into three management areas and the federal and state governments approve any development plans within the SMAs or GMAs. Local zoning laws continue to control property development in the Urban Area. The SMAs have the most significant scenic and cultural values and have been subject to developmental pressure from private land owners. Blair, The Columbia River Gorge National Scenic Area: The Act, Its Genesis and Legislative History, 17 Envtl. L. 863, 934 (1987). The SMAs are protected by Forest Service management, by the Forest Service's acquisition powers and by the Commission's authority to disapprove of any development. GMAs include land that need protection but that protection is not as crucially important as the lands within the SMAs. Id. The protection is achieved through the Commission's approval of property development. The exemption of the UAs plan enhances the economy of the cities and towns within the Scenic Area. The complex management plan, which includes studies of the Gorge and resource inventory, land use designation and adoption of a comprehensive plan by the state and local authorities creates more than a reasonable nexus to achieving Congress' goals. Congress acted within the scope of its constitutional power through the commerce clause when it enacted the Gorge Act. Plaintiffs next contend that the management plan violates the property clause. The property clause provides that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other property belonging to the United States." U.S. Const. art. IV, § 3, cl. 2. Congress may regulate privately and state owned lands if the regulations are necessary to protect the federal lands and navigable waters. Kleppe v. New Mexico, [20 ELR 21165] 426 U.S. 529, 538 [6 ELR 20545] (1976) (citing Camfield v. United States, 167 U.S. 518, 525-26 (1897)); United States v. Alford, 274 U.S. 264, 267 (1927); United States v. Lindsey, 595 F.2d 5, 6 (9th Cir. 1979). Plaintiffs contend that because the federal government owns only 17% of the total Scenic Area it does not own enough land to establish a rational basis for zoning non-federal land. Plaintiffs' argument is faulty. First, the federal government does not exclusively zone the Scenic Area but the states and local governments enact zoning laws that are consistent with the Gorge Act. Second, the federal government primarily regulates the SMAs and the United States owns a substantial amount2 of the land in the SMAs. The Forest Service has the authority to manage the land within the SMAs, to acquire property within the SMAs, and the Secretary has the authority to obtain injunctive relief or other relief from-violators of the Gorge Act if state or local government instrumentalities do not act consistently with the Gorge Act. 16 U.S.C. §§ 544g(a)(1), m(b)(1), m(b)(5)(A). As I found above, the Gorge Act, through the Forest Service and the Secretary, protect the land within the Scenic Area — federal, state and private land — from threats to the natural, scenic beauty, and the natural resources. The Forest Service or Congress has not acted beyond the scope of the property clause. Plaintiffs next contend that Congress "bootstrapped" its legislative authority for the Gorge Act with the compact clause. Congress must consent to a compact between two states when the activity in the compact affects the federal sphere, U.S. Const. art. I, § 10, cl. 3, but Congress cannot confer its powers through the compact clause. Seattle Master Builders v. Pacific N.W. Elec. Power, 786 F.2d 1359, 1374 (9th Cir. 1986), cert. denied, 479 U.S. 1059 (1987). Since I have found that Congress had authority to enact the Gorge Act through the commerce clause and through the property clause, plaintiffs' argument that defendants bootstrapped their authority to enact the Gorge Act through the compact clause does not have any merit. The Pacific legal Foundation ("PLF"), Amicus Curiae, additionally argues that the Compact is not valid because Congress coerced Oregon and Washington into approving the compact. PLF contends that the states did not take part in formulating the Compact and Congress created a detailed scheme that the state had no choice but to accept. Thus, PLF argues that the Compact is unconstitutional. Congress can consent to a compact prior to the states agreeing to the compact, id. at 1364, and can specify conditions precedent to congressional consent. Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 281-282 (1959). The Compact, here, is similar to the compact in Seattle Master Builders, where four states adopted a compact to create an interstate council. 786 F.2d at 1374. In Seattle Master Builders, Congress specified the provisions for the creation and the operation of an interstate council. Seattle Master Builders, 786 F.2d at 1372; see 16 U.S.C. § 839b. The congressional act required the council to prepare a regional conservation plan which conformed to a list of federal standards. Id. The Ninth Circuit held the Compact valid. Id. Similarly, the Gorge Act sets forth specific requirements that the commission must follow prior to Congress consenting to the Compact. For example, the states' land use ordinance must be consistent with the enumerated use and development standards for land within SMAs and GMAs set forth in the Gorge Act. 16 U.S.C. §§ 544d(1)-(9). The states also must create a commission and the Commission, in cooperation with the Secretary, must then integrate these standards into a Scenic Area Management Plan. However, the Act did not require Oregon and Washington to enact the Compact. The states were free to reject the conditions of the Compact. Instead Oregon and Washington established a Commission and agreed to a compact which incorporated the terms of the Gorge Act. The states were not coerced into agreeing to the Compact. The Compact is valid. Plaintiffs argue that the Gorge Act and the Compact amend the United States Constitution. Congress had the power to enact the Gorge Act through the commerce clause and the property clause and Congress properly exercised its right to consent to a valid compact. Therefore, Congress has not amended the Constitution by enacting the Gorge Act. Plaintiffs' arguments that the Gorge Act usurps the democratic process and the plaintiffs' electors' right to franchise are without merit. Plaintiffs contend that their electors were denied the right to approve or reject, by vote, the local government apparatus and the right to initiate and refer for a county vote local land use ordinances. The states, through their democratic process and their electors, agreed to the Compact, created the Commission and were authorized to enact zoning laws. 16 U.S.C. §§ 544c(a)(1)(A) & (B) and 544e(b)(2), f(h)(2). The states also have not been denied the right to participate in the national political process and have not been singled out. See Garcia v. San Antonio Metro Transit, 469 U.S. 528, 555 (1985); South Carolina v. Baker, 485 U.S. 505, 512-13 (1988). Congress did not violate the tenth amendment or deny plaintiffs' electors equal protection. Plaintiffs further assert that the Gorge Act, the Final Interim Guidelines and the Compact do not provide landowners with prior notice, a hearing or a forum to contest the National Scenic Area Management Plan. They claim that defendants are limited to quasijudicial reviews of land use proposals. Plaintiffs' claim is without merit and is not ripe for review. First, the Act provides for public comment and participation. The Gorge Act states that "the Secretary and the Commission shall conduct public hearings and solicit public comment prior to final adoption of the management plan and the Commission shall conduct public hearings and solicit public comment prior to final adoption of land use ordinances." 16 U.S.C. § 544d(e). In addition, the Gorge Act and the Compact provide for judicial review of any final actions of a county, of the Commission, or of the Secretary, which relates to the implementation of the Act and of any land use ordinance or interim guideline adopted under the Act. Id.; 16 U.S.C. § 544m(b)(4). Further, the Commission's Plan is not in final form and the public will be entitled to additional notice and comment. Plaintiffs have not been denied any procedural due process of the law. Plaintiffs next argue that the Gorge Act is unconstitutionally vague as applied to the development of privately owned land within the Scenic Area but outside the Urban Area. The Act prohibits residential developments outside the Urban Area that "adversely affect" the scenic, cultural, recreational, and natural resources of the National Scenic Area. 16 U.S.C. § 544d(d)(8). Plaintiffs contend that "adversely affect" is ambiguous and the defendants must speculate as to the Act's application. A statute is void for vagueness if its terms are not described with sufficient definiteness so that ordinary people can understand what conduct is prohibited, and if it is understood in a manner that encourages arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983). The term "adversely affect" in itself is understandable when read in the context of the Gorge Act. It means development that will harm the scenic beauty or natural resources of the Scenic Area. The Gorge Act also applies other standards for determining if the land development will adversely affect the Gorge. See 16 U.S.C. §§ 544(a), 544d(j), 544(1) and 544d(d). For example, § 544(a) defines adversely affects as "a reasonable likelihood of more than moderate adverse consequences for the scenic, cultural, recreation or natural resources of the scenic area. . . ." The Secretary has also developed interim guidelines and the Commission has enacted administrative rules. The term "adversely affect" is clearly defined and the plaintiffs have not been denied substantive due process. Plaintiffs also contend that the court should enjoin Commission members who have been members of Friends of the Columbia Gorge from participating in quasi-judicial hearings because due process requires impartial decision making. The defendants assert that [20 ELR 21166] none of the Commission members are currently members of the Friends of Columbia River and the Board is not biased. Due process requires an impartial decision-maker, even if the adjudication is administrative and informal. Goldberg v. Kelly, 397 U.S. 254, 271 (1970). Plaintiffs have the burden to prove that the decision-makers partially decided the case, which is shown through a financial or personal stake. Federal Trade Comm'n v. Cement Inst., 333 U.S. 683, 702-3 (1948). It is not a denial of due process for a judge or an administrative law judge to decide a case after the judge expressed an opinion on the issue in a case. Id. In Cement, the Court found that the plaintiff was not denied procedural due process when the ALJ had testified at a congressional hearing that was contrary to the plaintiffs' positions. Here, plaintiffs allege primarily that the Commission members are biased because they were members of Friends of the Columbia River. One board member, Dave Cannard, made a loan to Friends which Friends paid back onNovember 10, 1988. The loan does not create a financial interest in the plaintiffs' appeals to the Commission. Plaintiffs have not demonstrated any financial or personal stake the Commission members have in the outcome of the case and the Commission members are not biased just because they may have personal views. See id. b. Washington's Statutory Disqualifications of a Judge Plaintiffs also contend that Washington's "appearance of fairness rule" applies and that the members' association with the FCG violates this statute. See RCW 42.36.060. The statute, however, applies only to ex parte contact, which did not occur here. The Washington conflict of interest statute, which applies here, disqualifies a judge from decision making when the judge has a pecuniary interest. RCW 42.18.160. Agency personnel are not disqualified for having formed opinions regarding matters at issue. The Commission members are not biased either under the United States Constitution or Washington's laws. c. Exclusion of the Director From Contested Appeals Plaintiffs next request the court to enjoin the Executive Director from involvement in contested appeals on developmental proposals because he performs three different roles: judge, witness and attorney. Plaintiffs argue that Oregon Revised Statute 183.450(8) prohibits the executive director from giving legal arguments and giving legal advice to the Commission. An agency member may represent the agency if the agency and the attorney general give the director permission. ORS 183.450(9). If permission is not given the party claiming that the ruling should be reversed must demonstrate that the agency member was prejudiced. Id. On November 14, 1988, the Commission permitted the executive director to represent the Commission, and on October 28, 1988, the Oregon Attorney General permitted the executive director to represent the Commission. Some of the plaintiffs' appeals occurred prior to permission being granted by the Attorney General. The plaintiffs, however, have not shown that the Director substantially prejudiced their cases as required by the statute. See ORS 183.450(9). Since the Commission and the Attorney General ratified the executive director's appearance after the plaintiffs' appeals, I find that the plaintiffs' decisions should not be reversed and the commission is not enjoined from having the executive director represent it. E. Violation of the Appointments Clause Even though plaintiffs have argued that their constitutional rights have been violated because zoning is a state or local issue and state administrative statutes should apply, plaintiffs argue that the Gorge Act violates the appointments clause. U.S. Const. art. II, § 2, cl. 2. Plaintiffs assert that the Commission is a federal agency and the President of the United States should appoint the members of the Commission. Plaintiffs further assert that the Commission is a federal agency because the Commission administers and enforces the Gorge Act on private land owners. Similar to the case at bar, in Seattle Master Builders, 798 F.2d at 1359, the petitioners argued that if the council is a valid compact agency, the appointments clause requires the members to be appointed by the President of the United States and not the governors of the states. The Ninth Circuit disagreed, stating that "[t]he appointments clause is addressed to the separation of powers between the President and Congress. No court has yet held that the appointments clause prohibits the creation of an interstate planning council with members appointed by the state." Seattle Master Builders, 786 F.2d at 1365. The appointments clause applies to: 1) all executive officers; 2) who serve pursuant to federal law; 3) and who serve with significant authority over federal governmental actions. Oregon and Washington enacted laws pursuant to the Gorge Act and the Commission enforces the laws pursuant to the Compact and the states' laws. "As with any compact, congressional consent did not result in the creation of the compact but only authorized the creation of the compact organization and the appointment of its officials. The appointment, salaries and direction of the Council members are state derived." Id. at 1365. As in Seattle Master Builders, I need not reach the first and third element because the plaintiffs did not prove the second element. I find that the commission acts pursuant to Oregon and Washington laws; therefore, the compact did not violate the appointments clause. Plaintiffs also contend that since the Commission is a federal and not a state agency, the defendants should be acting pursuant to federal law and that the landowners are denied due process and equal protection of the law. They assert that the landowners in the GMA are denied access to the federal court on appeal of the Commission's denial of a proposal. As I have found that the commission is a state agency and acts pursuant to state law, the plaintiffs are not entitled to a review of the Commission's decisions in federal court. Further, there is no requirement that federal court have jurisdiction "so long as there is an opportunity to be heard and for judicial review which satisfies the demands of due process." Yakus v. United States, 321 U.S. 414, 444 (1944). The judicial review which the Gorge Act sets forth satisfies due process. The Gorge Act and the Compact specify that jurisdiction over appeals or challenges to Commission or county action be placed in state courts, while providing jurisdiction to review action taken by the Secretary in federal district court. 16 U.S.C. § 544m(b)(4)-(6). Congress has the power to define and limit the jurisdiction of federal courts. Lauf v. E.G. Skinner & Co., 303 U.S. 323, 330 (1938). Since all challenges to the Commission or county actions are pursuant to state law and the Secretary's actions are pursuant to federal law, a rational basis exists for judicial review in state court for an appeal from the Commission and rational basis exists for judicial review in federal court for review of the Secretary's actions. Plaintiffs have not been denied due process of the law. F. Administrative Rule[s] 350-20-002(12) and 350-20-004(2) Lastly, plaintiffs allege that the Commission should be enjoined from using administrative rule[s] 350-20-002(12) and 350-20-004(2) because the Commission unlawfully amended the Final Interim Guidelines. The Commission expanded the definition of residential development to include "any alteration to the exterior deemed significant to the Commission or its designee." Adm. Rule 350-20-002-(12). The Commission also amended the FIGs' definitions of agricultural land to include landsuitable for production of farm commodities, Adm. Rule 350-20-004(2)(a), and farm land to include land capable of producing in excess of twenty cubic feet per acre per year of merchantable tree species. Adm. Rule 350-20-004(2)(b). Plaintiffs allege that until the management plan is in effect the FIGs apply to any proposed development outside the Urban Area. The Gorge Act authorizes the Commission only to develop guidelines for inclusion in the management plan to be adopted by the counties in the Scenic Area and the Commission acted without authority when it amended the definitions enumerated above. Defendants contend that § 544h(c) gives the Commission authority to amend the FIGs during the interim period. Section 544h(c) provides that during the interim period [t]he Commission shall review all proposals for major development actions and new residential development in such county in the scenic area, except urban area. The Commission shall allow major development actions and new residential development only if it determines that such development is consistent with the standards contained in § 544d of this title and the purposes of §§ 544 to 544p. 16 U.S.C. § 544h(c). This Section is ambiguous as to whether the Commission must follow the FIGs exactly. Section 544h(c) only states that the Commission must find that the development is not consistent with the standards set forth in the Gorge Act. The defendant/Commission correctly states that the proper question here is whether the rules are consistent with the Gorge Act itself. Wide discretion is given to administrative agencies when they [20 ELR 21167] interpret the law. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 [14 ELR 20507] (1984). The court must determine if the Commission abused its discretion and whether the adopted rules are unreasonable and inconsistent with the Act. Id. at 843. The Commission's definition of residential development does not expand Congress's definition. "Alteration to the exterior" is only a more detailed and clearer definition of "construction of any residence or other related major structure." I find that the Commission's definition is consistent with the Gorge Act. The Commission definition of agricultural land is no different than Congress'. See 16 U.S.C. § 544d(b)(2). Finally I find that the definition of farm land is not inconsistent or unreasonable because the Commission clarified the definition of farm land. Considering that much of the land in the Columbia Gorge contains forest products, it is necessary to set clear standards for determining when land is capable of being used as a farm product. I find that the Commission did not abuse its discretion by setting forth more detailed definitions of the developments restricted by the Gorge Act. I find that the plaintiffs did not have standing to assert a takings claim and that the Columbia River Gorge Scenic Act and the Compact are constitutional. Congress, the Commission, and the counties acted within the authority of the United States Constitution, the law of the United States and the Oregon and Washington Constitutions and laws. Plaintiffs are denied declaratory and injunctive relief. Judgment is for defendants. Plaintiffs are denied declaratory and injunctive relief. 1. The parties have stipulated to all the facts contained in this section. 2. The federal government owns 42,102 acres out of 112,328 acres of land in the SMA. 20 ELR 21162 | Environmental Law Reporter | copyright © 1990 | All rights reserved |