The Future of the Gorge

And Now, the Main Event: Measure 37 vs. the Gorge Commission

By Dan Richardson, 10-23-06

	The view north from an Oregon hilltop over Lyle, Wash., to Mount Adams. This landscape, with development concentrated into communities and limited outside them, characterizes the Columbia Gorge's Scenic Area — but a court case in the works now challenges that, on the Oregon side of the river.

There’s a court case quietly underway that may affect everyone who lives in or has a stake in the Columbia Gorge.

At issue: The future of the preserving — often irritating, sometimes stifling — land-use rules that have kept ambitious land owners from turning the Oregon side of the river into a vast entertainment and housing development.

The case on the docket of the Oregon Court of Appeals is titled the Columbia River Gorge Commission vs. Hood River County, and it’s scheduled for oral arguments on Dec. 7.

We might more accurately call the case Oregonians In Action vs. the Gorge Commission, for those are the real actors here.

In the court case, two Hood River-area property owners say that Oregon’s Measure 37 supercedes the National Scenic Area rules developed by the Gorge Commision. The men, Stephen Struck and Paul Mansur, want to build a few houses on their land; under current rules designed to protect the Gorge from sprawl, they don’t meet minimum lot sizes.

Mansur has just over half an acre he wishes to subdivide into two lots, but under Gorge and Hood River land use rules, he must have a minimum of four acres to do so. Similarly, Struck wishes to subdivide his 6.75 acres into three lots, but the rules call for a 40-acre minimum per lot.

The men are represented by Ross Day, the chief lawyer for Oregonians In Action (OIA).OIA is, of course, the property rights group that successfully pushed for Measure 37 a couple years ago. M-37 says that governments that instituted land-use rules after a property owner acquired his property must either waive those rules, or pay property owners for the value of their would-be developments.

Land-use rules have unarguably preserved the Gorge from hyper-development. They do so by frustrating many property owners’ wishes, though. Land rules are at the heart not just of this case but of Oregon’s future in many aspects, from how the Hood River Valley will developand change, to the possibility of houses on wild Steens Mountain, to the future of agriculture and family farms.


Are Gorge rules voluntary or required?

In the case at hand, OIA laywer Day has raised what might be called the federal question: Measure 37 specifically exempts land use rules that are required to comply with federal law. Rules like those created by the Congressionally approved Columbia River Gorge Commission, say government attorneys. Not so, argue the property rightists — the Gorge Commission has promulgated rules of its own accord, and these must be treated as any other state law.

Bottom line: Does Measure 37 trump the tight land-use regulations in the National Scenic Area?

So the court case isn’t about Mansur and Struck, really. It’s about the entire Oregon side of the Columbia Gorge, every parcel in private ownership here. Property owners have rights. But, in the aggregate, do they have the right to overrun a place with development? How legitimate — or not — is the urge to keep the Gorge from ultimately becoming another Las Vegas-esque strip?

How legitimate is the use of government restrictions to do so?

Besides Struck, Mansur and the OIA, there is also in the court case, either as defendants or respondents (interested parties), are Hood River, Wasco and Multnomah Counties, the state of Oregon, the Columbia River Gorge Commission and the Friends of the Columbia Gorge.

Congress authorized the bi-state Columbia River Gorge Compact between Oregon and Washington which formed the Columbia River Gorge Commission, but the feds did not require the states to create the commission. It was implied and assumed, but not demanded. Congress’s National Scenic Act did require that when (if) the Gorge Commission was formed, it would manage the scenic area under a management plan with nine standards to guide and limit sprawl.

Anything more, argues OIA attorney Day, is voluntary. The Gorge Commission, in other words, is acting beyond what’s absolutely required. This includes minimum lot size rules that keep people like Struck and Mansur from subdividing their property in the Gorge (and, of course, building more houses there).

OIA’s brief in the case asks, “If Congress intended there be minimum parcel sizes in certain areas of the Columbia River Gorge, why didn’t Congress simply place those parcel sizes in the Act itself, much the same way the state of Oregon has done?”

Because the Gorge Commission enacts these rules of its own accord, they must follow Measure 37 in Oregon, argues OIA.

That’s a misreading of the Congressional Act, counters Gorge Commission attorney Jeffrey Litwak in his brief to the appeals court: The National Scenic Area includes instructions, he writes, for the Gorge Commission to create broader rules upholding the nine federally-mandated standards. Also, the Gorge Commission is a bi-state body, not an Oregon state entity subject only to Oregon law, including Measure 37.

The idea that Congress could and should have spelled out specific lot sizes, writes Litwak, is in error. The Congressional Act, he writes, “clearly states that the Management Plan ‘shall include provisions to’ achieve the standards. The Act requires the Commission and Forest Service to develop the Management Plan and land use regulations, and not simply repeat what is already listed in the Act.”


The narrow, vital point

There’s more to the case, of course — a couple hundred pages of legalese, of land use and property rights and interstate governmental precedents. And I’d stake someone dinner at Hood River’s finest restaurant that the case won’t end at the Appeals Court, but will end up at Oregon’s Supreme Court.

Meanwhile, nobody is debating the facts in the case, just a narrow, vital, point of law.

It is actually the same point of law at the heart of the land protections vs. property rights debate: Who takes first place in the competing interests? The property owner (represented by Measure 37), or the neighbors and community (the land use rules)?

Who gets to say how we use, or preserve, this finite amount of space we share?

Because the point of this court case isn’t whether Mansur and Struck get to build a couple new houses. Let me repeat: The point here isn’t about these two. It’s about the next two hundred would-be builders in the Gorge, and the two hundred after them. Is that fair to Struck, and to Mansure? Probably, it isn’t. Land-use restrictions on our liberties sometimes seem heedless of the little guys. But sometimes, the big picture is more important.

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