October 31, 2008

Court hears gorge appeals
Decision expected sometime next year

By RODGER NICHOLS
of The Chronicle

     Should the Columbia River Gorge Commission be treated like a federal animal, a creature of a bi-state compact, or something else entirely?
     That question was at the heart of arguments Wednesday on three appeals heard before the Supreme Court of the State of Oregon. The appeals were raised by the Friends of the Columbia River Gorge concerning the decisions of the Columbia River Gorge Commission.
     Two of the appeals had previously been affirmed in favor of the gorge commission by the Oregon Court of Appeals. In the third case, the Court of Appeals remanded the matter to the Commission, but to address only one of the petitioners’ multiple claims.
     One legal question was raised in all three cases, and received the majority of the court’s time.
     The question: When gorge commission actions are reviewed in state courts, do federal judicial principles of agency review and deference applicable to federal agencies, as in the decision of Chevron USA, Inc. v. Natural Resources Defense Council, apply to the Columbia River Gorge Commission?
     In the Chevron case, the U.S. Supreme Court held that a two-step process applies when a court reviews a federal agency’s interpretation of the statute it administers.
     The first question is whether the statute is clear. If so, then the court “must give effect to the unambiguously expressed intent of Congress.”
     If the statute is ambiguous on the matter, then the court must uphold the agency’s interpretation, if reasonable.
     In all three of the cases heard Wednesday, the Friends of the Gorge held that the Oregon Court of Appeals had mistakenly given that deference to the commission in allowing the commission’s interpretation of the management plan to prevail in the three contested items.
     The commission argued that the Appeals Court had done the right thing.
     The question stems from the status of the Columbia River Gorge Commission. It is neither a federal agency nor a state agency, but a bi-state compact, authorized by an Act of Congress and created by a compact between Oregon and Washington.
     That’s why the Pacific States Marine Fisheries Commission and the Northwest Power and Conservation Council filed a joint amicus brief in support of the gorge commission’s position. Both of them are multi-state compact agencies.
     “This court should recognize that all courts conducting judicial review of an interstate agency’s interpretations of its organic laws and its own regulations should accord the compact agency’s legal interpretations deference and controlling effect, if reasonable. This court could base its recognition of such a rule, as the Court of Appeals did, on the federal law overlay inherent in the formation of an interstate compact agency to which Congress has given its consent,” the agencies argued in their joint brief.
     They also urged the court to adopt the thesis that “the need for deference is inherent in the nature and purpose of interstate compacts themselves.”
     The State of Oregon also filed an amicus brief, which said in part, “Oregon has a strong interest in having its courts evaluate Commission decisions under the same standards applied by the other courts in which those decisions may be challenged. Uniformity of judicial-review standards is necessary to deter forum shopping and to further the Commission’s efforts to create a uniform and coordinated plan to protect and develop the Columbia River Gorge.”
     The Friends of the Gorge argument against deference to the commission stems in part on a provision in the scenic area act which states that the Commission “shall not be considered an agency or instrumentality of the United States for the purpose of any Federal law.”
     Furthermore, Friends argued that the gorge commission is not even a federal creation — though preapproved by Congress, the commission did not exist until the two states entered into the bi-state compact — that its members are appointed by the states or counties, and that it must comply with state laws.
     “The Commission is neither a creation of federal law nor the recipient of delegated authority from Congress. The Commission derives its authority from state law,” Friends argued.
     The gorge commission, through its attorney, Jeff Litwak, argued the commission has more federal than state characteristics.
     Land use planning in the Columbia River Gorge National Scenic Area occurs under the authority and standards of the federal Columbia River Gorge National Scenic Area Act, and the Columbia River Gorge Compact, which involves a compact between states, the commission argued.
     Furthermore, they noted, under the act and compact, the commission and the U.S. Forest Service jointly write the regional land use management plan, which must comply with nine standards in the federal act. and the U.S. Secretary of Agriculture must concur that the plan, or any later modification, complies with the act’s standards.
     “Chevron applies because this court construes federal statutes in the same manner as the U.S. Supreme Court,” the commission argued in one of the briefs. “Additionally, an interstate compact is subject to federal construction; federal and Washington state courts already apply Chevron to commission decisions; and this court’s application of Chevron would create a uniform method for construction of the scenic area act and review of commission actions.”
     The above are highly condensed and represent only a fraction of the oral and written arguments in just one of the issues touched on in the three cases.
During oral arguments Wednesday, the seven justices interrupted both attorneys repeatedly for clarifications and elaborations.
     At the conclusion of the arguments, Chief Justice Paul J. De Muniz praised commission attorney Jeff Litwak and Friends attorney Gary Kahn.
     “On behalf of the Court, we want to thank you both for your excellent briefing and we want to thank you for the oral arguments that you presented today,” he said “Both of you were exceedingly well prepared, very responsive to the court’s questions, and the professional manner in which you have obviously dealt with each other for a lengthy period of time is in the highest order of our profession, and it was a privilege to have you in court.”
     When will the court rule? Supreme Court staff attorney Stephen Armitage said so far this year, the court has issued 73.85 percent of its opinions within six months. He cautioned that each case is unique, and it could be considerably longer or shorter than the six months mark.
     It is far from the last time the Friends and the commission will be in court together. In September, the Friends filed an appeal of the commission’s management plan amendment concerning the proposed Broughton Landing resort development west of Bingen.
     Given the complex nature of that amemdment, the Oregon Supreme Court may see the same parties again at a future date.