November 6, 2009

Challenges in the gorge

By Rodger Nichols
The Chronicle

     On Tuesday, Nov. 10, the Columbia River Gorge Commission will meet in the Gorge Room at the Best Western Hood River Inn for its monthly meeting. One of the items on the agenda will launch a process that will eventually result in changes to the Scenic Area Management Plan. Those changes will be made in response to a decision made this summer by the Oregon State Supreme Court.
     On Oct. 29, 2008, the Oregon Supreme Court heard oral arguments in three cases involving suits filed against the Columbia River Gorge Commission by the Friends of the Columbia Gorge and others.
     The court usually is able to return decisions in four to six months.
     This time, it took until July 16, 2009, nearly eight months.
     Why the delay?
     Well, it’s complicated.
     First, the score card.
     Two of the cases concerned objections by Friends and other groups to decisions made by the commission. In both cases, the Court of Appeals upheld the commission’s decisions and in both cases the Supreme Court affirmed those decisions. Score both as clear wins for the commission
     The decision in the third case (SO5722) had something for both sides.
     As the court wrote in its opinion, “The decision of the Court of Appeals is affirmed in part and reversed in part. The revisions to the management plan are upheld in part and invalidated in part, and the case is remanded to the Columbia River Gorge Commission for further proceedings.”
     The backstory on this is a long one.
     The Act of Congress that created the National Scenic Area (NSA) in 1986 also mandated that Oregon and Washington enter into a bi-state compact to manage the NSA. The Columbia River Gorge Commission was created by that compact and charged with creating a Scenic Area Management Plan. Additionally, the commission was given the responsibility to conduct a thorough review of that plan at least every ten years.
     In 1997, the commission began that review.
     As the Supreme Court noted in its decision, that process “took some time.”
     The commission made a list of topics for consideration. But Oregon and Washington, which jointly fund the commission, ran into tough economic times and cut back much of the funding the commission had counted on to carry out its review.
     In order to comply with the Act and conduct some sort of review, the commission limited the review to a much smaller list of issues.
     The revised management plan was adopted in April 2004.
Friends and others then filed an appeal to the Oregon Court of Appeals, arguing that various aspects of the management plan violated the requirements of the act and the commission’s review process was incomplete because the act required it to review the entire management plan.
     The appeals court heard the case in March 2007 and released its decision Oct. 31, 2007.
     The Court of Appeals remanded the management plan to the commission for reconsideration of one minor issue, but otherwise affirmed it.
     Friends and other petitioners then brought the case to the Oregon Supreme Court, challenging the Court of Appeals’ decision on 11 separate issues.
Of the 11 issues, the Supreme Court resolved six firmly in favor of the Commission.
     In two issues, the court agreed with the Friends and said the Commission had to do further work on the management plan to consider the cumulative effects of changes on cultural resources and on natural resources.
     In the remaining three issues, the Supreme Court noted that Friends made good points, but did not find error that required the commission to do more work.
     Underlying all of the issues in this case, and the other two cases as well, was the question of how to treat agencies created by multistate compacts when their actions are reviewed in state courts.
     The Supreme Court had to decide whether it would follow federal judicial principles of agency review and give multistate compact agencies like the commission the same deference that is applied to federal agencies, even though the act specifically states that the commission is not a federal agency.
     The key ruling in terms of the deference due federal agencies comes from Chevron USA, Inc. v. Natural Resources Defense Council, a 1984 U.S. Supreme Court case.
     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 these cases, 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.
It’s a complex question.
     Jeff Litwak, staff attorney for the Columbia River Gorge Commission puts it this way:
     “The [National Scenic Area] Act is very limited; it just says the state courts of Oregon and Washington have jurisdiction to review commission action. It doesn’t go to the next step and say how courts should review those actions.”
     That’s not an unusual situation for compact agencies, he said. Of the 125 that exist, only a few of the compacts that create the agencies specify how courts should review their actions.
     By comparison, he said, both Oregon and Washington have administrative procedures acts which spell out procedures to review actions of state agencies.
     In the case of a disputed rule created by a state agency in Oregon, for instance, Oregon law says the court can declare the rule invalid for one of three reasons: It violates constitutional provisions, exceeds statutory authority of the agency, or is adopted without compliance to rulemaking procedures.
     “That’s the filter that the court puts each case through,” Litwak said. “If you don’t meet any of those, you don’t win, no matter how good an argument you have.”
     As an example, he said, an environmental group can’t simply argue that it doesn’t think the agency’s rules are tough enough. They can only challenge the rule on one of the three grounds given above.
     Washington has a different set of rules, and so does the federal government.
Ultimately, the Supreme Court agreed that the federal (that is, the Chevron) standard should prevail.
     “Congress delegated authority to the commission that, under the federal methodology that we are bound to apply, implies a congressional expectation that the commission will ‘speak with the force of law’ when it addresses ambiguities and gaps in the statutory scheme,” the court said in its decision.
     “The commission’s interpretations of the act therefore are entitled to the level of deference that the Chevron doctrine prescribes. That means if the Act is ambiguous with respect to some matter the commission’s construction must be upheld, unless it is unreasonable.”
     That’s good news for the commission.
     “When we interpret the Scenic Area Act, it’s all uniform now. All the courts are now going to apply the standards of Chevron,” said Litwak.
     “Even though Chevron is very complicated, at least we and the folks who are challenging the commission’s actions, are only trying to figure out one complicated system.”