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Opinion issued on the Zimmerly quarry

Conservation group to challenge activities at the mine

By , Columbian political reporter
Published: August 12, 2018, 10:37pm

Mining at a gravel pit that has rankled nearby residents can continue after the county hearings examiner has determined that its owner has the required permit. However, a local conservation group said it has a new strategy to challenge the mine.

In 2017, the Nutter Corp., a Vancouver-based construction company, took over the lease for a 120-acre gravel pit owned by the Zimmerly family. The renewed activity at the pit, located outside of Washougal near Gibbons Creek, drew complaints from residents about the increased truck traffic and noise from a rock crusher.

The mine caught the attention of county code enforcement. In early 2018, the county contacted both Judy Zimmerly, the owner of the pit and Jerry Nutter, the CEO of Nutter Corp., notifying them that they were conducting surface mining operations and rock crushing without the required site plan and conditional use permits.

In May, land-use lawyers Jamie Howsley, representing Zimmerly, and Steve Horenstein, representing Nutter, filed an appeal to the Clark County hearings examiner, an individual hired by the county to review its regulatory actions through a quasi-judicial process.

In hearings in June and July, the two argued before Hearings Examiner Joe Turner that a permit issued by the state Department of Natural Resources in 1972 for surface mining at the Zimmerly mine was still in effect. Deputy Prosecutor Bill Richardson argued that the mine lacked the appropriate permits and was effectively unregulated.

“The examiner disagrees with the County’s assertion that surface mining operation on the Property are ‘unregulated,” wrote Turner in his order.

Turner’s order, issued Aug. 7, determined that surface mining operations can continue on the property as an existing use. He wrote that surface mining activity remained subject to other regulations regarding noise, air quality and others.

However, Turner wrote that the rock-crushing activity at the mine is not authorized. The opinion notes that the rock crusher was removed from the mine prior to the county’s April 20 inspection.

“The decision from the hearings examiner followed Jamie’s and my analysis right down the line,” said Horenstein in an email. He added, “It is an important decision for Clark County and other jurisdictions who are depending on Nutter to complete road and related projects this summer and fall. The rock for those projects is coming from this rock pit and there are not other options to obtain this material.”

According to Richardson, the county has not decided if it will take further action but will monitor the site for further crushing activity.

Turner denied an attempt by conservation group Friends of the Columbia Gorge along with neighbors to join the appeal in support of the county. He also denied a brief offered by the group.

But Nathan Baker, senior staff attorney at Friends of the Columbia Gorge, said in an email that the hearings examiner’s decision leaves an opening for his group to challenge the activities at the mine.

The mine is located in the Columbia River Gorge National Scenic Area, which is subject to stringent land-use requirements that are overseen by a commission. Baker pointed to a line in the hearings examiner’s decision that states that the Gorge Commission approved surface mining operations at the property in 1993.

The decision further noted that the Gorge Commission “has not determined that the use adversely affects the scenic, cultural, natural or recreation resources of the Scenic Area.” Baker said the Gorge Commission could determine that the 1993 approval is void or that the mine has violated other regulations.

“The hearing examiner’s decision puts the ball squarely in the Gorge Commission’s court,” he said. “Friends and the neighbors will be renewing our requests that the Gorge Commission initiate an enforcement action and stop the illegal mining, which continues to harm the local community and threaten Gorge resources.”

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