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News / Clark County News

Washougal mine owner, operator file suit

Lawsuit targets Gorge Commission, county, neighbors

By Jeffrey Mize, Columbian staff reporter
Published: November 11, 2019, 7:56pm

The battle over a gravel mine outside Washougal took another turn last week as the mine’s owner and operator filed a lawsuit against the Columbia River Gorge Commission, Clark County and mine opponents.

The lawsuit seeks to overturn the Gorge Commission’s Oct. 16 written order against the mine. It requests a ruling that the commission lacks jurisdiction over “code enforcement actions” and that opponents have lost their opportunity to appeal an August 2018 decision in the mine’s favor by Clark County Hearings Examiner Joe Turner.

Attorneys for the mine’s owner, Judith Zimmerly, and its operator, Nutter Corp., filed the lawsuit Wednesday in Clark County Superior Court. Other defendants include Friends of the Columbia River Gorge and 13 residents who live near the mine.

James Howsley, an attorney representing Zimmerly, said the lawsuit challenges the Gorge Commission’s authority to hear the issue.

“From our perspective, Clark County code is extremely clear that during code enforcement proceedings that all challenges go to Clark County Superior Court,” Howsley said.

Steve Horenstein, an attorney representing Nutter, said two lawsuits have been filed, one challenging the Gorge Commission’s jurisdiction and another challenging the decision itself.

The mine, 6303 S.E. 356th Ave., is east of the Washougal city limits inside the Columbia River Gorge National Scenic Area. The mine has drawn heated opposition from residents who say they have endured up to 200 trucks a day traveling at unsafe speeds, along with protracted noise and large amounts of dust.

Friends of the Columbia River Gorge refers to the mining as “illegal” and says it represents “the largest ongoing land use violation” in the 33-year history of the scenic area, which protects the picturesque canyon where the Columbia River slices through the Cascade Range.

1993 permit

The issue dates back nearly 50 years to February 1972, when the Washington State Department of Natural Resources issued a mining permit for the site, before Congress created the Columbia River Gorge National Scenic Area in 1986.

In 1993, the Gorge Commission issued a development review for the site, the equivalent of a permit, that allowed the mine to expand onto adjacent property. The decision was contingent on a number of conditions, including that the permit would be void if mining stopped for one year or longer.

No mining occurred for more than 10 years, until Nutter reopened the mine in 2017. That triggered objections from area residents and environmental activists who said the mine’s permit was no longer valid.

Clark County subsequently notified Nutter that the company must cease operations. Nutter and Zimmerly appealed to Hearings Examiner Turner, who ruled that mining could continue.

The Gorge Commission, meeting Aug. 13 in The Dalles, Ore., heard an appeal of Turner’s decision and voted 11-1 to reverse his order.

Commission frustration

During the Gorge Commission’s last meeting, on Oct. 8 in Cascade Locks, Ore., several commission members expressed frustration that Clark County had not taken stronger action to shut down the mine.

The commission, by a 9-1 vote, instructed Executive Director Krystyna Wolniakowski to direct Clark County to take whatever steps are necessary to immediately cease all activities, including rock crushing. If the county does not stop operations, then the Gorge Commission staff should take action and levy appropriate fines.

Wolniakowski said Clark County issued a stop work order for the mine on Oct. 18. The county, she said, could not act until the Gorge Commission’s final order was issued on Oct. 16.

“This isn’t a matter of turning a light switch on and off — ‘stop work’ — and they are going to obey,” she said. “This is a very tangled legal process.”

Wolniakowski said she has not reviewed the latest lawsuit, but she disputed its basic claim.

“It’s baffling to me why they think the Gorge Commission, which is responsible for permitting and working with the counties for any activities in the Gorge National Scenic Area, why they don’t think we have jurisdiction,” she said.

“Our goal is for Washougal pit to be in compliance and to get a permit for legal operation,” Wolniakowski said. “It’s not illegal to mine there; it’s just illegal to mine without a permit. And that’s been our goal all along, not to shut them down but get them into compliance.”

Hauling, not mining

Horenstein said the county actually sent a letter suggesting they would issue a stop work order but did not take that action.

“We’re not excavating up there right now,” he said. “We are hauling the material that has been excavated.”

Horenstein said Nutter, under protest, has filed for a new mining permit.

“We believe we have a permit, and the hearing examiner agreed we had a permit,” he said. “And if our original lawsuit that was filed is successful, we still will have a permit.”

Horenstein said his clients also intends to file a claim for business interference against the county for changing the review process for surface mining permits to one that is exclusively handled by county staff.

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“We’re pretty unhappy with Clark County at this point,” he said. “And the board (Clark County Council) has dodged a bullet and stepped out of the whole thing. This is all about regulation and not the need for the material. And staff doesn’t seem to be concerned about the need for the material.”

Columbian staff reporter