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Gorge board appeals to U.S. Supreme Court

For the first time in its 15-year history, the Columbia River Gorge Commission is seeking to have a land-use case heard by the nation's highest court.

The bi-state entity is asking the U.S. Supreme Court to overturn a Washington state Court of Appeals decision that it believes creates "unfairness" in the administration of Scenic Area rules.

At issue is whether a January 2001 appeal court ruling over "vested rights" should stand in the case of Skamania County v. Woodall. The Commission said that judgment allows the three Washington counties in the Gorge to apply the state's "common law," which is based on the judge's ruling in prior court cases, when interpreting ambiguities in the Scenic Area Management Plan.

The Gorge Commission believes that would 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, which may be forced to spend up to $80,000 to defend its case, contends the court is the final decision maker in both states for appeals of land-use rules, setting the precedent for quasi-judicial decisions. It also argues that the Scenic Area Management Plan itself allows each state's legal interpretation on issues of vested rights.

"The court simply did what the Management Plan instructed; apply Washington's common law to determine an issue of vested rights," said Skamania County Prosecutor Bradley Andersen. "Why then should the Commission object to the court following the Management Plan's plain language?"

Skamania County is also questioning the fiscal responsibility of the bi-state entity in forcing both parties to spend unnecessary monies on legal fees when Scenic Area budget cuts may be looming as both Oregon and Washington struggle to overcome budget deficits.

"I wish the Gorge Commission would spend its apparent limited resources to enhance the public's confidence in the way land-use decisions are made rather than spending public funds, which neither of us can afford, on this appeal," said Skamania County Commission Chair Bud Quinn. "This should be a wake-up call to the state of Washington on how the Gorge Commission is using its money to hammer a county."

Andersen said the bi-state agency's actions are especially difficult to understand when it is still facing a potentially huge settlement from a lawsuit filed by Jody and Brian Bea. The couple filed the action after they won a common law case over the Gorge Commission last year before the Washington Supreme Court.

However, Martha Bennett, executive director of the Gorge Commission, said it could cost more money in the long run to not have the broad legal issue resolved once and for all. She said the Commission will use the services of its own counsel, Jeff Litwak, which should enable it to hold costs down to between $10,000-$15,000.

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

The Gorge Commission decided to seek the federal court ruling after the Washington Supreme Court denied a review of the case in October of 2001. Litwak said it won't be known for several months whether the U.S. Supreme Court will even decide to hear the case.

The contested case arose from a decision by Skamania County that allowed Scott Anderson to restore his three-site trailer park near Beacon Rock, Wash., to its former 10 sites, seven of which had set 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 had 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.

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