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The Columbia River Gorge National Scenic Area Act.

I. Introduction

The Ninth Circuit Court of Appeals decided two cases in 1992 interpreting the Columbia River Gorge National Scenic Area Act.(1) In Columbia River Gorge United v. Yeutter,(2) the court considered the first constitutional challenge to the Act, and to the interstate Compact(3) between Oregon and Washington that adopted it. In Broughton Lumber Company v. Columbia River Gorge Commission,(4) the court dealt with both the first claim concerning jurisdiction under the National Scenic Act and the first action for inverse condemnation against the regional or interstate agency created under the Act, the Columbia River Gorge Commission.

In both cases, the court addressed significant questions of federalism, arising in the context of the interstate Compact. Under the terms of the Compact, Oregon and Washington agreed to use a regional approach and a uniform set of legal standards to govern the protection of natural resources, as well as the economy, along both sides of the Columbia River. These standards provide a comprehensive planning approach to the Gorge as a whole.(5)

In both cases, the court established a framework for the interpretation of the Act and the Compact. The elements of the framework include adherence to the explicit provisions of the legislation as enacted by Congress, and precision in the use of legislative history to carry out the intent of the federal government and the states. This approach underscores the Ninth Circuit's recognition of the fundamental theme governing the Act and the Compact: the natural resources in the Gorge are protected by regional standards that transcend the prior law of Oregon and Washington.

II. Background

The Columbia River marks the boundary between two states that each have their own tradition in the protection of natural resources and the environment. Washington has generally provided wide latitude to local government in the administration of regulatory programs for land use and development activities. Oregon has used a more centralized approach based on the application of mandatory statewide goals and policies.

The divergence in these systems presented a unique challenge to planning, protection, and management of the natural resources that make up the Columbia River Gorge area. The Gorge is a distinct geographic region with a spectacular constellation of natural resources; but, due to fragmentation in authority and a diffusion in regulatory responsibility, a comprehensive approach to management of the area was not possible.(6)

After years of negotiations and concerted efforts by both states, the federal government, and interested groups, a consensus was created for enactment of the Columbia River Gorge National Scenic Area Act in 1986.(7) The National Scenic Act provided one set of legal standards for management of the Gorge and the creation of a regional or interstate agency to implement the law.(8) The federal legislation was adopted by Oregon and Washington in the Columbia River Gorge Compact.(9) The Act and the Compact provide the federal government, Washington and Oregon, six counties, and four Indian tribes with a comprehensive structure for management of the Gorge as a region.(10)

III. Columbia River Gorge United v. Yeutter(11)

In the first case, a group of property owners and an organization known as Columbia Gorge United (CGU) challenged the constitutionality of the National Scenic Act. They brought suit against the Secretary of Agriculture and the Gorge Commission, claiming the Act violated the federal and state constitutions. The district court granted summary judgment rejecting all of the plaintiffs' claims.(12)

CGU filed the only appeal. In the Ninth Circuit, CGU argued the Act violated a list of provisions of the U.S. Constitution including the Commerce Clause, the Property Clause, the Compact Clause, the Tenth Amendment, and the Fifth Amendment entitlement to equal protection.(13) The principal position advanced by CGU was that the Act and the Compact were contrary to the intentions of Oregon and Washington. CGU claimed that "the states were coerced into accepting conditions laid down by Congress."(14) At the outset, the opinion of Judge Mary Schroeder rejected this line of argument, noting that the Attorneys General for both Oregon and Washington strongly maintained the legislation was the result of mutual cooperation between the federal government and the states to achieve a satisfactory result.(15)

The legislative history of the Act and the Compact amply supports the conclusion of the court. Prior to its passage by Congress and approval by the President, the National Scenic Act was the subject of years of study, hearings, draft legislation, and initiatives, at both the state and national level.(16) The Act was the result of a consensus forged through participation by citizens, organizations, and officials at all levels of government.(17) The court also held that issues of fact relating to the alleged coercion had been resolved against CGU in findings that were not clearly erroneous.(18) Thus, the court addressed only issues of law in the decision.

A. The National Scenic Act

The court first examined the National Scenic Act. The Act created the Columbia River Gorge National Seenic Area.(19) The National Scenic Area extends eighty miles east from Portland and Vancouver, along both sides of the Columbia River, through the heart of the Gorge. The Act provided the consent of Congress to an interstate compact between Oregon and Washington which "regulates land use and development activities within the Scenic Area."(20) Congress' consent to the Compact was contingent upon the creation of a regional or interstate agency, the Columbia River Gorge Commission, with the authority provided in the Act.(21)

The National Scenic Act directed the Gorge Commission to prepare a resource inventory, an economic opportunity study, and a recreation study.(22) The agency was required to develop land use designations for property in the general management areas (GMAs) of the Gorge.(23) The Secretary of Agriculture was charged to follow the same process for the special management areas (SMAs) where some of the most sensitive resources are located.

The Act directed the Gorge Commission and the Forest Service to prepare a management plan for the National Scenic Area based on the resource inventory and the land use designations, consistent with the standards established by Congress in the legislation. The standards require the plan to protect and enhance agricultural lands, forest lands, open spaces, and recreation resources, and prohibit development from adversely affecting the scenic, cultural, recreation, and natural resources of the area.(27) The Act also required the Gorge Commission to incorporate into the plan, without change, the guidelines and land use designations made by the Forest Service for the SMAs.(26)

Once the Secretary of Agriculture approves the plan, each county in the Gorge is authorized to adopt land use ordinances that are consistent with it.(29) The ordinances for the GMAs must be approved by the Gorge Commission, and the ordinances for the SMAs must be approved by both the Gorge Commission and the Secretary.(30) If a county decides that it will not adopt an ordinance, the Gorge Commission is required by the Act to do so in its place.(31) A county may choose at a later point in time to adopt its own ordinance, subject to approval by the Gorge Commission and the Secretary.(32)

In this way, the Act requires that all development activities within the National Scenic Area are consistent with the management plan created by the Gorge Commission and the Forest Service.

B. Validity of the Act Under the Commerce Clause

CGU contended the National Scenic Act exceeded the legislative authority granted to Congress by the U.S. Constitution under the Commerce Clause.(33) The court pointed out the clause has been interpreted broadly to allow regulation of channels of commerce as well as "|activities affecting commerce.'"(34) In addition, an activity that appears insignificant may be regulated where one individual's "|contribution, taken together with that of many others similarly situated, is far from trivial.'"(35)

The court emphasized that CGU did not dispute at trial that among the concerns of Congress was "a desire to preserve the beauty of the area for those who would travel to use the rivers and mountains in it for recreation, thus directly causing interstate travel. Congress also intended to "regulate competing economic activities within the scenic area that are activities directly affecting interstate commerce."(36) The court stressed the physical features of the area that gave rise to the National Scenic Act and the interstate agreement:

These activities include logging and fishing. Moreover, and perhaps most important, the area itself is unique in that it consists of portions of two states bisected by a navigable waterway. In such an area, virtually all activities affecting the land, the economy, the environment, or the resources have interstate ramifications.(37)

The court rejected CGU's position that in upholding the constitutionality of the Act and the Compact, it was validating the authority of Congress to impose zoning regulations anywhere in the country. The court implied Congress' authority was limited to areas of "critical national significance."(38)

C. Validity of the Act Under the Property Clause

CGU next contended the Act exceeds the authority granted to Congress under the Property Clause of the U.S. Constitution.(39) The organization claimed that even though seventeen percent of the land in the Gorge is federally owned, Congress cannot regulate the whole area.(40) The problem is that development on nonfederally owned land has a sufficient effect on federally owned land to justify regulation under the Property Clause.(41) In addition, since the Act has a severability clause, the court found it was difficult to see how the legislation could be struck down in its entirety.(42) The court made no determination regarding the Property Clause since it already held that the Act was within Congress' authority under the Commerce Clause.(43)

D. The Tenth Amendment

CGU also argued the Act was a violation of the Tenth Amendment.(44) The court summarily rejected this claim. Since the Act is within the power given to Congress under the Commerce Clause, it cannot constitute a power reserved to the states.(45) This obviated the need to determine if CGU even had standing to assert the rights of the states.

E. Validity of the Act Under the Compact Clause

CGU claimed the agreement between the states and the Act were invalid under the Compact Clause.(46) A compact that increases the political power of the states must be approved by Congress.(47) "The relevant inquiry must be one of impact on [the] federal structure."(48) The parties agreed consent was necessary for the Gorge legislation, but CGU maintained advance consent was invalid and resulted in federal coercion. The same argument was previously made and rejected in Seattle Master Builders v. Pacific Northwest Electric Power,(49) in which the Ninth Circuit upheld the constitutionality of the Pacific Northwest Electric Power Planning and Conservation Act. The court noted the only difference between Seattle Master Builders and CGU's case was CGU's position that the National Scenic Act provides more elaborate detail than the compact establishing the Northwest Power Planning Act. In a significant aspect of the decision, the court found "there are distinct benefits from the kind of detailed advance planning between states and the federal government that led to this Compact."(50) The Ninth Circuit held that "[s]uch planning is fully consistent with the purpose of the Compact Clause. Regional arrangements may represent a necessary method for handling problems, such as transportation, waste disposal and environmental preservation, which because of their interstate nature cannot be handled by individual states acting alone."(51) The court rejected CGU's challenge to the Act under the Compact Clause, and held it is an "innovative solution to a difficult interstate land preservation problem."(52)

F. The Fifth Amendment

CGU also claimed the Act violated the Fifth Amendment guarantee of equal protection.(53) They argued that residents of the Gorge are subject to land use decisions by officials who are not elected, while residents in the rest of the state have the benefit of officials selected by voting.(54) The court disagreed, stating "When Congress, acting within constitutional limits, creates federal law, state law is nullified to the extent that compliance with both the federal law and the state law would be a physical impossibility."(55) The court stated the equal protection clause is not violated when a geographic area like the Gorge is singled out for special treatment.(56) Different treatment for different areas is valid as long as the basis for such treatment is not the result of "unconstitutional motivations."(57) The Ninth Circuit held that preservation of the Gorge is a permissible Congressional objective and a proper exercise of the power delegated to it.(58)

IV. Broughton Lumber Company v. Columbia River Gorge


In the second case, Broughton Lumber Company submitted an application to the Gorge Commission to develop property it owns on the bluff of the Columbia River. The property is in the National Scenic Area and Broughton Lumber sought to divide it into three parcels for residential development. The Executive Director of the Commission denied the application. Broughton appealed, and after a hearing before the Gorge Commission, the agency upheld the Director's decision. Broughton filed suit in federal court in Oregon naming the Gorge Commission, the states of Oregon and Washington, the United States, and the Secretary of Agriculture as defendants. Broughton contended the property had been taken by inverse condemnation.(60)

The district court dismissed the claim for inverse condemnation against Washington and Oregon for lack of jurisdiction and dismissed the parallel declaratory judgment action against the Gorge Commission for lack of subject matter jurisdiction. In addition, the court dismissed the claim for inverse condemnation against the Gorge Commission because it was not ripe, and dismissed the claim against the United States and the Secretary for lack of subject matter jurisdiction.(61) Broughton appealed the dismissal of the action against Oregon, Washington, and the Gorge Commission to the Ninth Circuit. The court reviewed the issue of subject matter jurisdiction in federal court de novo.

A. Inverse Condemnation Action Against the States

Broughton argued the inverse condemnation action against the states was proper in federal court because Congress abrogated the states' immunity under the Eleventh Amendment to the U.S. Constitution. Broughton also contended the Gorge Commission had waived its Eleventh Amendment immunity, which should be imputed to the states.(62)

1. Abrogation of Immunity by Congress

The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."(63) In general, this means that federal courts are barred from considering suits brought against states that do not consent to such actions. However, the Eleventh Amendment prohibition of suits against states in federal court has exceptions. The Ninth Circuit addressed two areas where the states may be subject to suits. In the first area, Congress may abrogate the states' immunity where its intent is revealed in clear language.(64) In the second area, a state may waive its immunity and consent to suit in federal court.(65) The waiver may be found "only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction."(66) A general waiver of sovereign immunity may subject the state to suit in state court, but this is insufficient to waive the immunity under the Eleventh Amendment.(67)

Broughton based its argument primarily on another case dealing with an interstate agency created with the consent of Congress under the Compact Clause, Petty v. Tennessee-Missouri Bridge Commission.(68) The agency in Petty was granted the authority to build a bridge and operate ferries across the Mississippi River. The compact specifically provided for suits against the agency and that none of its provisions "|shall be construed to affect, impair, or diminish any right, power, or jurisdiction of the United States or of any court. ...'"(69) Congress could have adopted as federal law, the law of either or both states.(70) In the circumstances leading to Broughton Lumber, Congress approved the compact under conditions that clearly provided that the states had waived immunity from suit.(71) The court held that Congress through the National Scenic Act did not abrogate the immunity of the states from suit in federal court.

2. Waiver of Immunity

Broughton also argued that the National Scenic Act and the Compact provided a waiver of sovereign immunity for the Gorge Commission, which should be imputed to the states. The court rejected this position and held the interstate agency had not explicitly consented to suit in federal court: "Pursuant to 16 U.S.C. 544m(b)(6), actions involving the Commission shall be brought in the state courts of Oregon and Washington. The Commission's waiver of sovereign immunity in the state courts does not act as a waiver of Eleventh Amendment immunity in the federal courts."(73) Since Broughton failed to demonstrate that Congress had abrogated the immunity of the states, or that the states had waived their sovereign immunity, the Ninth Circuit held the inverse condemnation claim against them is prohibited by the Eleventh Amendment and was properly dismissed. The court declined to decide whether the Gorge Commission's immunity may be imputed to the states since it has not been waived for suits in federal court.

B. Declaratory Judgment Action Against the Gorge


Broughton claimed that the federal court had subject matter jurisdiction for purposes of its declaratory judgment action against the Gorge Commission under the National Scenic Act. The court, however, held that sections of the Act "clearly confer mandatory jurisdiction upon the state courts for actions involving the Commission."(75) Jurisdiction in federal court is explicitly reserved for actions brought by or against the Secretary of Agriculture.(76)

The court also rejected Broughton's claim that the district court had general federal question jurisdiction over its declaratory judgment action. The National Scenic Act is more specific and must therefore control.

C. Inverse Condemnation Action Against the Gorge


Broughton made two claims in regard to its inverse condemnation action against the Gorge Commission. The company contended that the states' waiver of sovereign immunity eliminated the ripeness requirement and that the states' remedies for takings without just compensation are inadequate.(78)

The Ninth Circuit took the opportunity to succinctly summarize the doctrine of ripeness in federal court litigation: First, the doctrine excludes premature adjudication and prevents the courts from entanglement in abstract disagreements.(79) Second the federal courts lack subject matter jurisdiction and must dismiss a claim that is not ripe for review.(80) Finally, a constitutional challenge to a land use regulation may not be considered in federal court until it is ripe.(81)

A party must meet two requirements to establish a claim is ripe. First, the plaintiff must have obtained a "|final and authoritative determination of the type and intensity of development legally permitted on the subject property.'"(82) Second, "|if a State provides an adequate procedure for seeking just compensation,' plaintiffs may not bring as-applied claims to federal court until they have |used the procedure and been denied just compensation.'"(83)

In the alternative, a party who brings suit in federal court seeking compensation from the state "|bears the burden of establishing that state remedies are inadequate.'"(84)

Broughton's response to the doctrine of ripeness was to claim its application was obviated by the states' alleged waiver of sovereign immunity. The Ninth Circuit stressed its holding that the states had not waived their sovereign immunity.(85) The court also found that Broughton had not met the second prong of the doctrine anyway because the company failed to seek compensation from Oregon or Washington prior to filing suit in federal court. Since Broughton failed to meet this requirement, the court determined it was not necessary to analyze the first requirement.(86)

In fact, as the court pointed out, Broughton did not dispute that both states provide compensation for inverse condemnation. But Broughton failed to use the procedure available under either Oregon or Washington law.(87) Broughton also did not establish that the states' procedures were inadequate, nor did it demonstrate that the National Scenic Act precluded the authority of the states' courts to award damages if the requisite conditions are met.(88) For these reasons, the Ninth Circuit upheld dismissal of the inverse condemnation claim against the Gorge Commission.

V. Conclusion

The Ninth Circuit's decisions interpreting the National Scenic Act in 1992 resolved fundamental constitutional and jurisdictional issues. In Columbia River Gorge United v. Yeutter,(89) the court determined that the U.S. Constitution gave Congress the power to pursue its objective of preserving the Gorge through the interstate compact of the National Scenic Act. Further, in Broughton Lumber Company v. Columbia River Gorge Commission,(90) Ninth Circuit determined that the states of Washington and Oregon have jurisdiction over litigation involving the Gorge Commission authorized under the Act. 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. (1.) 16 U.S.C. [sub-section] 544-544p (1988, Supp. II 1990, & Supp. III 1991). (2.) 960 F.2d 110 (9th Cir.), cert. denied, 113 S.Ct. 184 (1992). (3.) OR. Rev. Stat. [section] 196.150 (1991); Wash. Rev. Code Ann. [section] 43.97 (West Supp. 1992-1993). (4.) 975 F.2d 616 (9th Cir. 1992). (5.) 16 U.S.C. [section] 544d. (6.) Columbia Gorge Comm'n & Pacific Northwest Regional Planning Comm'n, Report on the Problem of Conservation and Development of Scenic and Recreational Resources of the Columbia Gorge in Washington and Oregon 2 (1937). (7.) Pub. L. No. 99-663, 100 Stat. 4274 (codified at 16 U.S.C. [sub-section] 544-544p (1988)). (8.) 16 U.S.C. [sub-section] 544c-544d. (9.) Or. Rev. Stat. [section] 196.150 (1991); Wash. Rev. Code Ann. [section] 43.97 (West Supp. 1992-1993). (10.) 16 U.S.C. [sub-section] 544(g), 544d(e). The Act requires consultation and coordination with four Indian tribes, whose ties to the Gorge extend back from 10,000 to 20,000 years. The tribes are the Nez Perce, the Yakima Indian Nation, the Warm Springs, and the Umatilia. (11.) 960 F.2d 110 (9th Cir.), cert. denied, 113 S.Ct. 184 (1992). (12.) Id. at 112. (13.) Id. (15.) Id. (16.) 132 Cong. Rec. S15,636 (daily ed. Oct. 8, 1986) (Statement of Senator Hatfield); 132 Cong. Rec. H11,121 (daily ed. Oct. 16, 1986) (statement of Rep. AuCoin). (17.) Id. (18.) Columbia River Gorge United v. Yeutter, 960 F.2d 110, 112 (9th Cir.), cert. denied, 113 S.Ct. 184 (1992). (19.) 16 U.S.C. [section] 544b. The purposes of the Act are: (1) to establish a national scenic area to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources of the Columbia River Gorge; and (2) to protect and support the economy of the Columbia River Gorge by encouraging growth to occur in existing urban areas and by allowing future economic development in a manner that is consistent with paragraph (1). Id. [section] 544a. (20.) Columbia River Gorge United, 960 F.2d at 112. (21.) 16 U.S.C. [section] 5440(d). The Gorge Commission is a separate legal entity. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 400-02 (1979). (22.) 16 U.S.C. [section] 544d(a). (23.) Id. [section] 544d(b). The term "General Management Area" is not used in the Act, but has come into common usage to include all land in the National Scenic Area outside of the Special Management Areas and the Urban Areas. The Urban Areas are exempt from regulation. (24.) Id. [section] 544f. (25.) Id. [section] 544d(c)-(f). (26.) Id. [section] 544d(d)(1)-(9). The term "open space" is more commonly understood as a sensitive area and is defined in the Act to include: (1) scenic, cultural, and historic areas; (2) fish and wildlife habitat; (3) lands which support plant species that are endemic to the scenic area or which are listed as rare, threatened, or endangered species pursuant to State or Federal Endangered Species Acts; (4) ecologically and scientifically significant natural areas; (5) outstanding scenic views and sites; (6) water areas and wetlands; (7) archaeological sites, Indian burial grounds and village sites, historic trails and roads and other areas which are culturally and historically significant; (8) potential and existing recreation resources; (9) Federal and State wild, scenic, and recreation waterways. Id. [section] 544(l). (27.) 16 U.S.C. [section] 544d(d). (28.) Id. at [section] 544d(c)(4)-(5). (29.) Id. [section] 544e(b). (30.) Id. [sub-section] 544b, 544f(h)-(i). (31.) Id. [section] 544e(c)(1). (32.) 16 U.S.C. [section] 544f(m). (33.) The Commerce Clause of the Constitution provides that Congress "shall have the Power ... to regulate Commerce with foreign Nations and among the several States." U.S. Const. art. I, [section] 8, cl. 3. (34.) Columbia River Gorge United v. Yeutter, 960 F.2d 110, 113 (9th Cir.) (quoting Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264, 276-77 (1981)), cert. denied, 113 S.Ct. 184 (1992). (35.) Id. (quoting Wickard v. Filburn, 317 U.S. 111, 127-28 (1942)). (36.) Columbia River Gorge United, 960 F.2d at 113. (37.) Id. (38.) Id. (39.) The Property Clause of the Constitution provides that Congress has power "to dispose of and make all needful Rules and Regulations respecting the territory or other property belonging to the United States." U.S. Const. art. IV, [section] 3, cl. 2. (40.) Columbia River Gorge United v. Yeutter, 960 F.2d 110, 113 (9th Cir.), cert. denied, 113 S.Ct. 184 (1992). (41.) Id. at 113-114 (citing Kleppe v. New Mexico, 426 U.S. 529, 538 (1976); Camfield v. United States, 167 U.S. 518, 525-26 (1897)). (42.) Id. at 114. (43.) Id. (44.) The Tenth Amendment of the Constitution provides that powers not expressly granted to the federal government are reserved to the states. U.S. Const. amend. X. (45.) Columbia River Gorge United v. Yeutter, 960 F.2d 110, 114 (9th Cir.), cert. denied, 113 S.Ct. 184 (1992). (46.) U.S. Const. art I, [section] 10, cl. 3. The Compact Clause provides "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State. ..." See Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution - A Study in Interstate Adjustments, 34 Yale L.J. 685 (1928). (47.) Columbia River Gorge United, 960 F.2d at 114. The application of the Compact Clause is limited to agreements that are "directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States." Virginia v. Tennessee, 148 U.S. 503, 519 (1893). A compact is a contract. Green v. Biddle, 8 Wheat. 1, 92; West Virginia ex rel Dyer v. Sims, 341 U.S. 22, 28-29, 35 (1950). All the terms and conditions of a compact "must be equally obligatory upon the citizens of both states." Poole v. Fleeger, 11 Pet. 185, 187 (1837). The consent of Congress may be based upon conditions. Cuyler v. Adams, 449 U.S. 433, 440 (1937). In Cuyler, the Court stated: The requirement of congressional consent is at the heart of the Compact Clause. By vesting in Congress the power to grant or withhold consent on the States' compliance with specified conditions, the Framers sought to ensure that Congress would maintain ultimate supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority. 449 U.S. at 439-40 (1981). Congressional consent transforms an interstate compact into a law of the United States. Id. at 440. The Supreme Court has held the consequence of this metamorphosis is that unless the law is somehow unconstitutional no court may order relief inconsistent with its express terms." Texas v. New Mexico, 462 U.S. 554, 564 (1983). (48.) Columbia River Gorge United, 960 F.2d at 114 (quoting United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 471 (1978)). (49.) 786 F.2d 1359 (9th Cir. 1986), cert. denied, 479 U.S. 1059 (1987). See Dave Frohnmayer, The Compact Clause, The Appointments Clause and the New Cooperative Federalism: The Accommodation of Constitutional Values in the Northwest Power Act, 17 Envtl. L. 970 (1987); Maryhelen Sherrett, Seattle Master Builders Ass'n v. Pacific Northwest Electric Power and Conservation Planning Council: The Constitutionality of the Northwest Experiment in "Cooperative Federalism," 17 Envtl. L. 970 (1987). (50.) Columbia River Gorge United v. Yeutter, 960 F.2d 110, 114 (9th Cir.), cert. denied, 113 S.Ct. 184 (1992). (51.) Id. (52.) Id. at 115. (53.) Id. (54.) Id. (55.) Columbia River Gorge United v. Yeutter, 960 F.2d 110, 115 (9th Cir.), cert. denied, 113 S.Ct. 184 (1992) (citing Hillsborough County, Fla. v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713 (1985)). (56.) Id. at 115. (57.) Id. (citing Griffin v. County Sch. Bd. of Prince Edward County, 377 U.S. 218.) 231 (1964)). (58.) Id. (59.) 975 F.2d 616 (9th Cir. 1992). (60.) Id. at 618. (61.) Id. (62.) Id. (63.) U.S. Const. amend. XI. (64.) Broughton Lumber Co. v. Columbia River Gorge Comm'n, 975 F.2d 616, 619 (9th Cir. 1992) (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242-43 (1985)). (65.) Id. (citing Clark v. Barnard, 108 U.S. 436, 447 (1883)). (66.) Id. (67.) Id. (68.) 359 U.S. 275 (1959). 969. Broughton Lumber Co. v. Columbia River Gorge Comm'n, 975 F.2d 616, 619 (9th Cir. 1992) (quoting Petty, 359 U.S. at 277). (70.) Id. (71.) Id. (72.) Id. (73.) Id. at 619-20. (74.) Broughton Lumber Co. v. Columbia River Gorge Comm'n, 975 F.2d 616, 620 & n.3 (9th Cir. 1992). (75.) The court, quoting the Act, noted The State courts of the States of Oregon and Washington shall have jurisdiction - (A) to review any appeals taken to the Commission ... (B) over any civil action brought by the Commission pursuant to subsection (b)(1) of this section or against the Commission, a State, or a county pursuant to subsection (b)(2) of this section [citizen suits]; (C) over any appeal of any order, regulation, or other action of the Commission or a county taken pursuant to paragraph 4 of this subsection; or (D) any civil penalties assessed by the Commission pursuant to subsection (a)(3) of this section. Id. at 620 (quoting 16 U.S.C. 544m(b)(6), emphasis by the court). (76.) Id. The Act provides the United States district courts in Oregon and Washington shall have jurisdiction over any criminal penalty related to an order of the Secretary of Agriculture, civil action brought against the Secretary, or appeal of an order of the Secretary. 16 U.S.C. SS 544m(b)(5). In support of its holding, the court quoted a law review article that reached the same conclusion about federal and state jurisdiction under the Act, Bowen Blair, The Columbia River Gorge National Scenic Area: The Act Its Genesis, and Legislative History, 17 Envtl. L. 863, 964 (1987). Id. at 621. The court also noted that Congress had rejected several bills containing broader grants of jurisdiction upon the federal district courts. Id. H.R. 4161, 49th Cong., 2d Sess. (1986); H.R. 4221, 99th Cong., 2d Sess. (1986); H.R. 5583, 99th Cong., 2d Sess. (1986); H.R. 5625, 99th Cong., 2d Sess. (1986). (77.) Broughton Lumber Co. v. Columbia River Gorge Comm'n, 975 F.2d 616, 621 (9th Cir. 1992). (78.) Id. (79.) Id. (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105 (1977)). (80.) Id. (citing Southern Pac. Transp. Co. v. Los Angeles 922 F.2d 498, 502 (9th Cir. 1990), cert. denied, 112 S.Ct. 382 (1991)). (81.) Id. (82.) Id. at 622 (quoting MacDonald, Sommer, & Frates v. County of Yolo, 477 U.S. 340, 348 (1986) (citation omitted). (83.) Broughton Lumber Co. v. Columbia River Gorge Comm'n, 975 F.2d 616, 622 (9th Cir. 1992) (quoting Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 195 (1985)). (84.) Id. (quoting Austin v. Honolulu, 840 F.2d 768, 680 (9th Cir.), cert. denied, 488 U.S. 852 (1988) (citation omitted)). (85.) Id. (86.) Id. (87.) Presbytery of Seattle v. King County, 797 P.2d 907 (1990), cert. denied, 111 S.Ct. 284 (1990); Fifth Avenue Corp. v. Washington County, 581 P.2d 50 (1978). (88.) Id. (89.) 960 F.2d 110 (9th Cir.), cert. denied, 113 S.Ct. 184 (1992). (90.) 975 F.2d 616 (9th Cir. 1992).
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Title Annotation:1992 Ninth Circuit Environmental Review
Author:Watters, Lawrence
Publication:Environmental Law
Date:Jul 1, 1993
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