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Fairness leads Gorge Commission to appeal to U.S. Supreme Court

Gorge Commission filed an appeal on Jan. 2.

The Columbia River Gorge Commission is asking the U.S. Supreme Court to overturn a Washington state Court of Appeals decision that could result in different land use rules being applied to Washington and Oregon portions of the Scenic Area.

The Gorge Commission filed an appeal on Wednesday, Jan. 2, with the nation's highest court to reverse a January 2001 ruling (Skamania County v. Woodall) by the Washington Court of Appeals that requires the Commission and the three Washington counties in the Gorge to apply the state's "common law" land use rules when interpreting undefined terms in the Scenic Area's Management Plan.

(Statutory law refers to laws created by legislation; common law refers to laws created by the rulings of judges. Land use laws in Washington are based on common law, while Oregon's land use laws are generally statutory.)

"We decided to appeal the Washington Court of Appeals decision because it could lead to inconsistent application of Scenic Area regulations in Washington and Oregon," said Gorge Commission Executive Director Martha Bennett. "This ruling could result in Washington law applying to land use decisions in Washington, but Scenic Area law applying in Oregon because that state's statutory land use laws were replaced by the three Gorge counties' Scenic Area land ordinances.

"We don't think this is what Congress intended when it passed the National Scenic Area Act in 1986. That law was created so both sides of the Scenic Area would have the same land use laws," she said. "We are also concerned because it will create decisions that are fundamentally unfair to citizens of both sides of the river."

The Gorge Commission decided to ask the U.S. Supreme Court to review the Court of Appeals decision after the Washington Supreme Court denied review of the case in October 2001. Wednesday's appeal is the first time the Gorge Commission has taken a land use decision to the nation's highest court.

"As a rule, the Gorge Commission is loath to initiate appeals, but in this case we felt we had no choice," Bennett said. "Not appealing the decision could result in increased litigation in the future in both states as the extent of the Court of Appeals decision would be further tested in the courts."

Jeff Litwak, the Commission's legal counsel, said it won't be known for several months whether the U.S. Supreme Court will decide to hear the case.

The Woodall case arose from an appeal of a Skamania County land use decision that allowed a three-site trailer park to expand to its former size of 10 sites after the other seven sites sat vacant for more than one year.

"In making that decision, Skamania County applied Washington common law in determining whether a use is 'discontinued,' " Litwak said. "The county said that Washington's common law says a landowner must 'intend' to abandon a land use, and the owner did not intend to abandon the former 10-site trailer park."

Chris Woodall, an adjacent property owner, appealed the county's decision to the Gorge Commission, which concluded the county applied the wrong legal standard under the Management Plan and reversed the decision in January 1997.

"In overturning the county's decision, the Gorge Commission concluded that under the Management Plan the term "discontinued' does not require an intent to abandon, but requires only a showing of non-use for one year," Litwak said. "This is consistent with a prior Gorge Commission decision from 1990 that the Washington Court of Appeals upheld."

Skamania County appealed the Gorge Commission's decision to the Washington Superior Court, which ruled in favor of Woodall and the Gorge Commission.

Skamania County then appealed to the Washington Court of Appeals in September 1999.

"In the Woodall case, the Court of Appeals determined that Congress intended the Gorge Commission to apply Washington common law because the Columbia River Gorge Compact between Washington and Oregon did not expressly reject Washington common law," Litwak said. "Up until this case, all the court cases have said that a compact must expressly preserve state law in order for that law to apply."


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