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Supreme Court denies Gorge hearing request

The Columbia River Gorge Commission has lost its bid to have the nation's highest court rule on a "vested rights" issue.

This week the U.S. Supreme Court denied the bi-state entity's request that it hear arguments centered on a Washington Court of Appeals decision in the Skamania County v. Woodall case.

"The Supreme Court takes only about 100 cases of the over 7,000 that are filed each year, so in that sense we were not surprised by the Court declining to hear the case," said Jeff Litwak, the Commission's legal counsel.

But Skamania County Prosecutor Bradley Andersen questioned why, knowing these odds, the Gorge Commission forced the economically-depressed county to spend almost $20,000 to defend previous court victories.

"We believe the Court of Appeals took a common sense approach to this problem and provided reasonableness and certainty for property owners in the Scenic Area," said Andersen.

However, Martha Bennett, Gorge Commission executive director, said the agency spent $5,000 of staff attorney time to pursue the case because it "would be the subject of further appeals and litigation."

"The Commission sought review of the case because it was concerned about the unfairness of the Court of Appeal's decision on the Gorge as a whole," she said.

At issue is a January 2001 appeal court ruling that allowed Skamania County to apply Washington's "common law," which is based on the judge's ruling in prior court cases, when interpreting ambiguities in the Scenic Area Management Plan.

In that court action, Skamania County argued that the Management Plan created by the Gorge Commission clearly outlines that each state's legal interpretation would be applied on issues of vested rights.

"Skamania County, in its response to the Supreme Court, argued the interpretation was very narrow and concerned only the issue of discontinued use. We assume that the Supreme Court's refusal to review the case means this narrow interpretation is the right one," said Bennett.

However, she said the Gorge Commission is worried that the Washington appeal court's decision has broader implications and could lead to an inconsistent application of Scenic Area regulations since Oregon's land-use laws have been clearly defined by the Department of Land Conservation and Development.

But Skamania County contends the court is the final decision maker in both states for appeals of land-use rules, setting the precedent for quasi-judicial decisions.

"This decision requires the Gorge Commission to at least consider Washington and Oregon's case law when deciding land use matters within the Scenic Area," said Andersen.

The contested case arose from Skamania County's approval in the mid-1990s to allow Scott Anderson to restore his three-site trailer park near Beacon Rock, Wash., to its former 10 sites, seven of which had sat vacant for more than one year. In making that decision, the Gorge county applied Washington law which said a landowner must "intend" to abandon a land use.

Chris Woodall, who owned a nearby trailer park, appealed the county's decision to the Gorge Commission, which concluded the county has applied the wrong legal standard and reversed the decision in January of 1997. Litwak said the Commission concluded that under the Management Plan the term "discontinued" does not require an intent to abandon, only a showing of non-use for one year.

Skamania County appealed that decision to the Washington Superior Court, which ruled in favor of Woodall and the Gorge Commission. The county then filed with the Court of Appeals in September of 1999 and the Gorge Commission decided to seek the federal court ruling after the Washington Supreme Court denied its request for a review of the case in October of 2001.

Bennett said the Gorge Commission will take a look at the Management Plan language for "existing and discontinued uses" in the land-use section of its plan review that is now underway.

The state of Oregon and the Delaware River Port Authority filed briefs in support of the Gorge Commission's petition to the Supreme Court. Two of the initial drafters of the Scenic Area legislation, former U.S. Senators Mark O. Hatfield of Oregon and Daniel. J. Evans of Washington, also filed briefs supporting the Commission.

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