Baker has called for penalties to be brought against the mine’s owner and operator. In September, the commission denied a motion filed by Baker and Gary Kahn, an attorney for residents near the mine, seeking an injunction to bar Zimmerly and Nutter from engaging in mining or related activities at the Washougal Pit until they’ve acquired a National Scenic Area permit.
Krystyna Wolniakowski, executive director of the Columbia River Gorge Commission, said that despite the commission’s recent decision, Clark County is best-suited for enforcement action because most national scenic area regulations in the Gorge are enforced at the county level. She said that the Gorge commission can step in if the county isn’t taking proper enforcement action. But she said that step currently isn’t warranted.
“The ball is in Clark County’s court; I have said this many times,” said Wolniakowski.
In September, county Community Development Director Mitch Nickolds (who oversees code enforcement) wrote to Jamie Howsley, attorney for Zimmerly, stating that his client needed to obtain a National Scenic Area Permit for surface mining activities. Wolniakowski said that Zimmerly has begun the process of applying for a permit.
Nickolds said in an email that the county’s stop-order issued in May of last year is back in effect. He did not respond to follow-up questions. Howsley did not respond to a request for comment.
Steve Horenstein, attorney for Nutter, said in an email “this is all subject to an ongoing dispute that continues to get more and more complicated as a result of positions continuing to be taken by the county and the gorge commission.”
County Councilor Gary Medvigy, whose district includes the mine, told The Columbian last week that because of the legal sensitivity of the matter he was limited in what he could say. While the Gorge commission took a vote on the legality of the activities at the mine, Medvigy said that the county will be in a stronger position to take action once a written decision is issued.
Wolniakowski, in a follow-up email sent last week, said that the commission’s legal counsel has completed its final order, a written, legal, binding document that formalizes the decision regarding the pit. She said that the document will be sent to the county. But in the meantime, county documents show the operator has defied past orders.
Documents released by the county show that Zimmerly and Nutter Corporation have been interested in using a rock crusher at the Washougal Pit. Recent regulatory decisions have gone back and forth on what’s permitted at the mine. But even the decision most favorable to the mine found that rock crushing is currently not permitted.
Last year, Clark County Hearings Examiner Joe Turner, an individual hired by the county to review regulatory actions, reversed a county stop-work order issued against the mine in May. Turner determined that mining activities were allowed but that rock crushing was not authorized. In August of this year, the Gorge commission reversed Turner’s decision, effectively putting the county’s stop-work order back into effect.
Attorneys for Zimmerly and Nutter have argued that a rock crusher is allowed under Gorge commission regulations. In March, Howsley wrote to Nickolds with a proposal to allow a temporary rock crusher, which would reduce traffic, noise and dust. Records show Nickolds denied the request and that the pit’s operator later took a more assertive approach.
Notes released by the county show that on June 19 Nickolds and other county officials met with representatives from Washougal Pit. According to the notes, Jerry Nutter, the CEO of Nutter Corporation, and Howsley argued that the company was allowed to crush rock at the site under a 1993 permit approved by the Gorge commission and the county code. “Jerry Nutter also stated that they intended to begin rock crushing activity,” reads the notes.
“Mitch Nickolds asked Mr. Nutter if he was proceeding in spite of the hearings examiner’s determination that crushing activity was not permitted, and the pending appeal before the gorge commission,” reads the notes. “He indicated he was.”
According to the notes, Horenstein, attorney for Nutter, said the county “may be interfering with a contract in asserting no crushing activity was permitted at the Washougal Pit.”
Emails obtained by Friends of the Columbia Gorge show that county staff raised concerns about resumed operations at the Washougal Pit. In an email dated June 19, Carolyn Heniges, county public works manager, informed Public Works Director Ahmad Qayoumi and Bill Richardson, a deputy prosecutor, that the Washougal Pit was “processing rock and hauling again.”
“I am seriously hoping if this went through land use, we got a pavement agreement, but I am not aware of any,” she wrote. “They tore the road up during their last big effort of rock production, and we only did temporary repairs. Should we look into this further so we can be assured that we don’t continue to get significant damage without the opportunity to have them contribute to the long-term pavement repairs?”
Richardson responded that the plan did not go through land use and that the owner and operator of the mine met with the county and indicated they would resume “with (or) without the county’s permission.” He wrote that it was a matter for Nickolds.
On Sept. 18, Nickolds wrote Sean and Karen Streeter, residents who live near the mine and had complained about operations. Nickolds wrote that an enforcement officer visited the site and verified that “rock was being crushed in violation of our previous stop work order.”
“The pit owners have been officially notified that our amended stop work order was affirmed by the gorge commission and that we expected them to comply and secure proper permits for the pit,” he wrote.
Over the summer, Sean Streeter began taking photos of the mine using a drone. Baker said that his group and the neighbors began analyzing the photos and are confident they know exactly which model of rock crusher was at the site.
“The rock crusher disappeared but it came back,” said Baker. “But we don’t know in the meantime where it’s going.”
In an interview in late September, Paul Mairose, chief engineer for Southwest Clean Air Agency, said that the Nutter Corporation has portable rock-crushing equipment that is permitted by the agency. He said that the agency has received a complaint that Nutter has a large engine at the Zimmerly site and is using it to wash gravel, which is not permitted. He said the complaint is under investigation.