Watters, Laurence. “The Columbia River Gorge National Scenic Area Act.” Environmental Law 23 (1993): 1127-1139. Westlaw. University of Oregon, Eugene, OR. 27 Oct. 2005. Keyword: Columbia River Land Use. (reviewed by Kristin Johnson)
Summary:
Prior to 1986, the Columbia River Gorge was an area managed by the two states that it forms the border for: Oregon and Washington. However, the differences in management styles between the two states (Washington allowed local governments to handle much of the Gorge management while Oregon had a more centralized approach giving Salem management authority) posed a serious management problem in terms of both land use planning and protection.
It was this problem that drove the effort for the adoption of the Columbia River Gorge National Scenic Area Act in 1986 which created a comprehensive management structure for the Gorge as a region: one set of legal standards for managing the area and a regional or interstate agency to implement the law. Oregon and Washington adopted this legislation in the Columbia River Gorge Compact. However, in 1992, two cases were brought to the Ninth Circuit Court challenging the Act and its subsequent Compact.
The first case, Columbia River Gorge United v. Yeutter, was a case where Columbia River Gorge United (CGU), an organization of property owners in the area, challenged the constitutionality of the Act, filing suit against the Secretary of Agriculture and the Gorge Commission and arguing that it violated the federal and state constitutions. The case came to the Ninth Circuit Court where the plaintiffs argued that the Act was in violation of the Commerce Clause, the Property Clause, the Tenth Amendment, the Compact Clause, and the Fifth Amendment. The Court argued that in all of these areas, the Act was well within its legal bounds. The specific arguments made by both the plaintiffs and the Court are outlined in the article.
The second case, Broughton Lumber Company v. Columbia River Gorge Commission, was the result of a rejected application submitted by Broughton to the Columbia River Gorge for developing property it owns on the bluff of the river into three parcels for residential development. Broughton took the case to federal court in Oregon claiming, “the property had been taken away by inverse condemnation. All claims filed by Broughton were dismissed by the Ninth Circuit Court, which argued that jurisdiction for this type of case rested in the state courts, not the federal courts, particularly because the Commission and the states of Oregon and Washington were well within their legal rights. “The certainty the court provided in both decisions furthers the purposes of the Act, and ensures the application of a uniform set of legal standards for the protection of transboundary resources of national significance.”
Critique:
This is a well-written article that outlines the arguments made by these important precedence-setting cases in a clear and concise manner. The article was not difficult to understand even through all of the legal jargon. The article is pretty straightforward, but leaves out a lot of details, particularly arguments made by the defense counsels, in order to keep it streamlined.
One thing to note is that the author of the article is counsel for the Columbia River Gorge Commission, the entity these suits were filed against. This does not detract from the intent of the article, which was to show how the court's judgments in these cases created important precedence, but it may mean that loopholes in the Act that give plaintiffs legal recourse might not be as tightly closed as he presents them to be.
Robert D. Clark Honors College, University of Oregon
HC 441: Science Colloquium, Columbia River Ecology
Fall term, 2005
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