Friends of Columbia Gorge v. Columbia River

FILED: July 16, 2009

IN THE SUPREME COURT OF THE STATE OF OREGON

FRIENDS OF THE COLUMBIA GORGE, INC.,

COLUMBIA RIVERKEEPER, COLUMBIA GORGE HOTEL CO,

1000 FRIENDS OF OREGON,

CLAUDIA CURRAN, ERIC LICHTENTHALER,

JACK MILLS, KATE MILLS,

PHIL PIZANELLI, DIXIE STEVENS,

BRIAN WINTER, and CYNTHIA WINTER,

Petitioners

on Review,

v.

COLUMBIA RIVER GORGE COMMISSION,

Respondent

on Review.

(CA A125031; SC S055722)

En Banc

On review from the

Court of Appeals.*

Argued and submitted

October 29, 2008.

Gary K. Kahn, of

Reeves, Kahn & Hennessy, Portland, argued the cause and filed the briefs

for petitioners on review Friends of the Columbia Gorge, Columbia Riverkeeper,

Columbia Gorge Hotel Co., Claudia Curran, Eric Lichtenthaler, Jack Mills, Kate

Mills, Phil Pizanelli, Dixie Stevens, Brian Winter, and Cynthia Winter. With

him on the briefs was Mary Kyle McCurdy, Portland, for petitioner on review 1000

Friends of Oregon.

Jeffrey B. Litwak,

White Salmon, Washington, argued the cause and filed the brief for respondent

on review.

James E. Mountain,

Jr., of Harrang Long Gary Rudnick P. C., Portland, filed the brief for amicus

curiae Pacific States Marine Fisheries Commission. With him on the brief

was Jona J. Maukonen, Portland. Also on the brief was John Shurts, Portland,

for amicus curiae NW Power and Conservation Council.

Erin C. Lagesen,

Assistant Attorney General, Salem, filed the brief for amicus curiae

State of Oregon. With her on the brief were Hardy Myers, Attorney General, and

Mary H. Williams, Solicitor General.

GILLETTE, J.

The decision of the Court of Appeals is affirmed in part and reversed in part. The revisions to the management plan are upheld in part and invalidated in part, and the case is remanded to the Columbia River Gorge Commission for further proceedings.

*Judicial review of order of the Columbia River Gorge Commission. 215 Or App 557 , 171

P3d 942 (2007).

GILLETTE, J.

Petitioners, who are individuals,

businesses and conservation organizations with connections to the Columbia

River Gorge, sought judicial review by the Court of Appeals of the Columbia

River Gorge Commission's (commission) 2004 revision of its management plan for

the Columbia River Gorge National Scenic Area. Before that court, petitioners

argued, in numerous assignments and subassignments of error, that various

aspects of the 2004 revision violated the Columbia River Gorge National Scenic

Area Act, 16 USC §§ 544 -544p. The Court of Appeals rejected all but one of

petitioners' subassignments of error. Friends of Columbia Gorge v. Columbia

River Gorge , 215 Or App 557 , 171 P3d 942 (2007). We allowed petitioners'

petition for review, which challenges the various standards of review that the

Court of Appeals employed in considering petitioners' claims, as well as a

number of the Court of Appeals' substantive holdings. For the reasons that

follow, we affirm the Court of Appeals decision in part, reverse it in part,

and remand the case to the commission for further proceedings.

Because a general understanding of

the Act and its relationship to the commission and the management plan is necessary

to an understanding of the issues in this case, we provide the following background.

In 1986, Congress passed the Columbia River Gorge National Scenic Area Act, Pub

L 99-663, §§ 2-18, 100 Stat 4274 (1986), now codified at 16 USC §§ 544 -544p. The

Act states two purposes: (1) to create a national scenic area in Washington

and Oregon "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 area "by

encouraging growth to occur in existing urban areas and by allowing future

economic development in a manner that is consistent with" the first

purpose. 16 USC § 544a. The Act creates the Columbia River Gorge National

Scenic Area, § 544b, a designated area of land that lies adjacent to the Columbia

River in Oregon and Washington. It also authorizes those two states to enter

into an interstate compact and to create a regional commission, which, in

cooperation and consultation with the United States Secretary of Agriculture

(the secretary), is charged with developing, implementing, and administering a management

plan for the scenic area. 16 USC §§ 544c, 544d.

The Act itself establishes a

framework and a process for developing the contemplated management plan. First,

it divides the land in the scenic area into three categories: (1) "Special

Management Areas" (SMAs), over which the Secretary of Agriculture is to

have primary responsibility; (2) "Urban Areas," which the Act largely

exempts from the commission's control; and (3) all remaining areas, which would

come to be known as the "General Management Area" (GMA). 16 USC §§

544b(b), (e). Next, the Act directs the commission to carry out various

studies and inventories of the features, uses, and resources of all land within

the scenic area. 16 USC § 544d(a). It then requires the commission to use the

resulting studies and inventories to designate areas within the scenic area

that are suitable for specified uses -- agriculture, forest production, open

space, and commercial and residential development. 16 USC § 544d(b). Finally,

it instructs the commission to produce a land use management plan that

incorporates those land use designations, is consistent with certain specified standards

(set out below), and provides specific guidelines for the adoption of land use

ordinances within the scenic area. (1)

16 USC § 544d(c).

The aforementioned

"standards" essentially amount to a requirement that the management plan

include certain protective provisions. In particular,

"[t]he management plan and all land use

ordinances and interim guidelines adopted pursuant to [the Act] shall include

provisions to:

"(1) protect and enhance agricultural lands

for agricultural uses and to allow, but not require, conversion of agricultural

lands to open space, recreation development or forest lands;

"(2) protect and enhance forest lands for

forest uses and to allow, but not require, conversion of forest lands to

agricultural lands, recreation development or open spaces;

"(3) protect and enhance open spaces;

"(4) protect and enhance public and private

recreation resources and educational and interpretive facilities and

opportunities, in accordance with the recreation assessment adopted pursuant to

subsection (a) of this section;

"(5) prohibit major development actions in

special management areas, except for partitions or short plats which the

Secretary determines are desirable to facilitate land acquisitions pursuant to [this

Act];

"(6) prohibit industrial development in the

scenic area outside urban areas;

"(7) require that commercial development

outside urban areas take place without adversely affecting the scenic,

cultural, recreation, or natural resources of the scenic area;

"(8) require that residential development

outside urban areas take place without adversely affecting the scenic,

cultural, recreation, or natural resources of the scenic area; and

"(9) require that exploration, development

and production of mineral resources, and the reclamation of lands thereafter,

take place without adversely affecting the scenic, cultural, recreation, or

natural resources of the scenic area."

Id. at § 544d(d).

The commission is required to consult

with federal, state, and local governments in developing the management plan

and must conduct public hearings and solicit public comment before finally

adopting it. Id . at § 544d(e). Once the commission adopts a management

plan, it must submit it to the secretary for review and concurrence. Id .

at § 544d(f) . Once that concurrence has been obtained (or the commission

has overridden any objections by the secretary by a two-thirds vote), each of

the six counties within the scenic area (three in Oregon, three in Washington) must

adopt land use ordinances that are consistent with the management plan. Id .

at § 544e.

The management plan is subject to periodic

review and revision. Under section 544d(g), the commission is required to review

the management plan at least every ten years "to determine whether it

should be revised." As with the original management plan, it is required

to submit "any revised management plan to the Secretary for review and

concurrence." Id.

Pursuant to the Act, Oregon and

Washington adopted the Columbia River Gorge Compact, which established the Columbia

River Gorge Commission and provided for funding of that body. The legislatures

of Oregon and Washington ratified the compact shortly thereafter, and the

statutes reflecting that ratification appear, respectively, at ORS 196.150 and

RCW 43.97.015. Commission members were appointed and the commission commenced

work. (2)

In 1991, the commission completed a management plan and the secretary concurred

in that plan in 1992. Thereafter, the management plan controlled land

management decisions within the scenic area (except in the Urban Areas). (3)

In 1997, the commission began the

process of reviewing the original management plan "to determine whether it

should be revised," as the Act requires. 16 USC § 544d(g). In the

initial stage of that review, which took some time, the commission created a

list of topics within the management plan that the commission believed required

revision or, at least, further consideration. However, the commission thereafter

lost much of the funding that it had depended on to carry out its review and, therefore,

decided that it should confine its review to a smaller, select group of issues.

Over the next few years, the commission worked on revising the management plan with

respect to those selected issues and, in April 2004, it adopted a revised management

plan (4)

that incorporated the revisions. (5)

Following the management plan's adoption,

petitioners timely filed a petition for judicial review of the plan in the

Oregon Court of Appeals, as authorized by ORS 196.115. (6)

They argued that various aspects of the management plan violated the

requirements of the Act and also argued that the commission's review process

was incomplete because the Act required it to review the entire management

plan.

As noted, the Court of Appeals remanded

the management plan to the commission for reconsideration of one minor issue,

but otherwise affirmed it. Petitioners sought review by this court,

challenging the Court of Appeals' resolution of 11 separate issues. We

consider those challenges in turn, setting out additional facts that are pertinent

to the issue under consideration as to each.

1. Did

the Court of Appeals state and apply an erroneous standard of review insofar as

it held that, to succeed on a claim that the plan violates the Act, petitioners

must demonstrate that the plan cannot be applied consistently with the Act

under any circumstances?

Petitioners' first three challenges

pertain to standards of review that the Court of Appeals applied to petitioners'

claims that various aspects of the management plan violated the Act. First,

petitioners argue that the Court of Appeals erred when it held that, to prevail

on any of its challenges to policies and guidelines in the management plan,

petitioners "must demonstrate that the plan cannot be applied consistently

with the law under any circumstance." Friends of Columbia Gorge ,

215 Or App at 568 . Petitioners contend that, to the contrary, they need only

show that the challenged policies and guidelines depart from or contravene a

legal standard expressed or implied in the Act.

Notably, the Act itself provides no

standards for reviewing actions and orders of the commission, but appears to

leave such details to the courts that are authorized to perform such reviews.

Federal courts generally apply the standards of review provided in the federal

Administrative Procedures Act (APA), 5 USC §§ 500-706 , see, e.g. , Friends

of Columbia Gorge, Inc. v. Schafer , No CV 04-1423-MO, WL 5070962 at § 4 (D

Or, Nov 24, 2008) (applying 5 USC § 706 (2)(A)), and Washington courts apply the

standards of review set out in the Washington Administrative Procedures Act,

RCW § 34.05, and common law. See, e.g., Friends of Columbia Gorge. Inc. v.

Columbia River Gorge Com'n , 126 Wash App 363, 369-70, 108 P3d 134 (2005)

(demonstrating principle). In Oregon, however, the legislature has enacted a

statute, ORS 196.115, that governs judicial review of commission actions in

Oregon courts. It provides that review of final actions and orders of the commission

shall be conducted, initially, in the Court of Appeals, and that the court's

review "shall be in accordance with" various provisions of the Oregon

Administrative Procedures Act (the Oregon APA), ORS 183.310 to 183.750, pertaining

to judicial review of orders in contested cases. ORS 196.115(2), (3)(a). Moreover,

and in addition to referencing those Oregon APA contested case

provisions, the statute somewhat redundantly spells out a standard of review

that is almost identical to the one that Oregon courts are required to apply under

the Oregon APA to orders in contested cases:

"(c) The court may affirm, reverse or

remand the order. If the court finds that the agency has erroneously

interpreted a provision of law and that a correct interpretation compels a

particular action, the court shall:

"(A) Set aside or modify the order; or

"(B) Remand the case to the agency for

further action under a correct interpretation of the provision of law.

"(d) The court shall remand the order to

the agency if the court finds the agency's exercise of discretion to be:

"(A) Outside the range of discretion

delegated to the agency by law;

"(B) Inconsistent with an agency rule, an

officially stated agency position or a prior agency practice, unless the

inconsistency is explained by the agency; or

"(C) Otherwise in violation of a

constitutional or statutory provision.

"(e) The court shall set aside or remand

the order if the court finds that the order is not supported by substantial evidence

in the whole record."

ORS 196.115(3)(c) - (e).

In considering the standard of review

issue in the present case, the Court of Appeals acknowledged the foregoing

statutory standard, but noted that the standard is "less than a perfect

fit" with petitioners' challenges, because it calls for application of the

kind of review used in contested cases, while the commission's acts under

review are essentially legislative in nature. Friends of Columbia

Gorge , 215 Or App at 568 . The court opined that petitioners' challenges amounted

to a facial challenge to the lawfulness of the management plan and concluded

that, to prevail on such a claim, petitioners "must demonstrate that the

plan cannot be applied consistently with the law under any circumstance."

Id. In support of that standard of review, the court cited MacPherson

v. DAS , 340 Or 117, 138-39 , 130 P3d 308 (2006) and United States v.

Salerno , 481 US 739, 745 , 107 S Ct 2095 , 95 L Ed 2d 697 (1987), as cases

setting out the test for a challenge to the facial legality of an agency created

rule.

However, as petitioners correctly

observe, neither MacPherson nor Salerno is authority for

application of the Court of Appeals' "not-lawful-under-any-circumstances"

standard. Both cases involved a claim that a statute was inconsistent

with a constitutional provision -- in particular, the Due Process Clause

of the Fourteenth Amendment to the United States Constitution. Although it is

true that some authority in the federal courts supports applying that standard when

reviewing an agency's regulations for inconsistency with its authorizing

statute, (7)

this court, so far as we can determine, has never applied that standard to

anything other than a constitutional challenge to a statute.

Neither do we think that this is a

case that justifies applying that standard of review, so foreign to the administrative

law of this state, to what at bottom simply are challenges to the validity of an

administrative rule. In that regard, we observe that the management plan, both

in its original and its revised form, is much like a "rule," as that

term is defined in the Oregon APA, i.e. , it is "any agency

directive, standard, regulation or statement of general applicability that implements,

interprets or prescribes law or policy, or describes the procedure or practice

requirements of any agency." ORS 183.310(9). Moreover, the plan was

adopted and revised by the commission through a process similar to the

rulemaking process prescribed in the Oregon APA at ORS 183.335. Although the commission

is not a state agency that is directly subject to the Oregon APA, it is clear

that petitioners' challenges to the management plan are analogous to typical "facial"

challenges to the validity of a rule under the Oregon APA. In our view,

judicial review should proceed accordingly.

Petitioners urge this court to conduct

its review using the methodology of Planned Parenthood Assn. v. Dept. of

Human Res. , 297 Or 562 , 687 P2d 785 (1984). In Planned Parenthood , this

court set out the following standard for reviewing similar "facial"

challenges to the validity of an administrative rule:

"In the proper sequence of analyzing the legality of

action taken by officials under delegated authority, the first question is

whether the action fell within the reach of their authority, the question which

in the case of courts is described as 'jurisdiction.' If that is not an issue

* * * the question is whether the action was taken by procedures prescribed by

statute or regulation. Assuming that proper procedures were followed, the next

question is whether the substance of the action, though within the scope of the

agency's or official's general authority, departed from a legal standard

expressed or implied in the particular law being administered, or contravened

some other applicable statute. "

Id . at 565 (emphasis added). We agree with

petitioners that the quoted Planned Parenthood standard is consistent

with the legislatively prescribed statutory standard at ORS 196.115(3)(c) to (e)

and, particularly, with subparagraphs ORS 196.115(3)(d)(A) and (C), which

provide for remand to the agency if the court finds the challenged action to be

"outside the range of discretion delegated to the agency by law" or

"[o]therwise in violation of a constitutional or statutory

provision." That standard, and not the different standard of review that

the Court of Appeals utilized, is the appropriate one for petitioners' facial

challenges to the lawfulness of the management plan.

2. Did

the Court of Appeals err in holding that, when commission actions are reviewed

in Oregon courts, the deferential standard of review set out in Chevron USA v.

Natural Res. Def. Council , 467 US 837 , 104 S Ct 2778 , 81 L Ed 2d 694 (1984)

applies?

As noted, petitioners contend that the

management plan is inconsistent, in various respects, with the requirements of

the Act. To assess the validity of those claims, it is necessary to determine

what the Act requires. Consequently, our review of petitioner's claims

generally will involve some interpretation of the Act.

In interpreting the Act, we follow

the methodology that federal courts have prescribed for interpreting federal

statutes, just as we would do in interpreting any other federal statute. Corp.

of Presiding Bishop v. City of West Linn , 338 Or 453, 463 , 111 P3d 1123

(2005). In general, that means examining the text, context, and legislative

history of the statute. Id. However, there is an additional

methodological wrinkle when, as in the present case, one of the parties before

the court is the agency that has been charged with implementing the statute that

is to be interpreted. A long line of federal cases, beginning with Chevron

U.S.A. v. Natural Res. Def. Council , 467 US 837, 842-44 , 104 S Ct 2778 , 81

L Ed 2d 694 (1984), holds that, when a federal agency has been charged by

Congress with implementing a federal statute, courts should defer to that

agency's interpretation of the statute, treating that interpretation as controlling

as long as it is reasonable. See , e.g. , Nat'l Ass'n of

Homebuilders v. Defenders of Wildlife , 551 US 644 , ___, 127 S Ct 2518,

2534 , 168 L Ed 2d 467 (2007); Barnhardt v. Walton , 535 US 212, 215 , 122

S Ct 1265 , 152 L Ed 2d 330 (2002); Rust v. Sullivan , 500 US 173, 184 ,

111 S Ct 1759 , 114 L Ed 2d 233 (1991) (each stating same rule). Although that

sort of deference is foreign to the administrative law of this state, (8)

we are bound to apply it in our interpretation of federal statutes if the

federal interpretive methodology so demands.

The remaining methodological question

in this case, however, is whether the federal methodology would require

deference by a federal court to the commission's interpretation of the Act,

given the fact, among others, that the commission is not, strictly speaking, a federal

agency charged by Congress with implementing a federal law. The Court

of Appeals concluded that, although the commission is not a federal agency, Chevron

deference to its interpretations of the Act is appropriate because the commission

is "a creation of federal law," it is authorized to implement federal

law, and "the usual rationales for deference to agency construction" therefore

should apply to its interpretations of the Act. Friends of Columbia Gorge ,

215 Or App at 570 . (9)

Petitioners argue, however, that the commission

is not a creation of federal law but, instead, is the creation of an

interstate compact that Congress authorized but did not require Oregon and

Washington to adopt. From that premise, petitioners argue that the commission

is not the recipient of delegated authority from Congress but, instead, derives

its authority from state law, insofar as Washington and Oregon chose to create

the commission and to assign to it its present powers. Finally, petitioners

observe that the Act expressly states that the commission "shall not be

considered an agency or instrumentality of the United States for the purpose of

any federal law," 16 USC § 544c(a)(1)(A) (emphasis added),

including (they argue) the federal judicially created law relating to deference

to agencies' statutory constructions.

For its part, the commission argues

that, even if it is not directly a creature of federal law, the

interstate compact that created it is more federal in nature than not, insofar

as it incorporates federal law (the Act), pertains to subject matter of

national interest, and required Congress's express consent. The commission

concludes that Chevron deference therefore is appropriate. The commission

also argues that applying Chevron deference in Oregon courts to the commission's

interpretations of the Act is desirable because it "brings a degree of

consistency and uniformity to the states' judicial review of commission actions

involving interpretation of the federal Scenic Area Act that would not occur if

the state courts use their own state law." The commission notes, in that

regard, that federal and Washington state courts have applied Chevron to

the commission's interpretations of the Act. Finally, the commission points to

what it characterizes as a "solid history" in federal courts of

applying Chevron deference to interstate compact agencies'

interpretations of their own organic statutes. (10)

The commission suggests that this court should follow suit.

The commission's last two points are

unpersuasive. First, given that Chevron is a mainstay in the federal

courts, the fact that federal courts have applied Chevron deference to compact

agencies' interpretations of federal statute may simply have been reflexive. In

the absence of any explicit and authoritative holding that all courts should defer

to compact agencies' interpretations of their (federal) organic statutes, regardless

of differences between the particular compact agencies' powers, the review

provisions in the statutes at issue, and the reviewing courts' ordinary

practices, we are not inclined to follow the cited cases without conducting our

own analysis of the question.

The commission's argument for applying

Chevron as a means of ensuring uniformity in judicial review also is unpersuasive.

Although we agree with the commission that variation in judicial review

methodologies could undermine uniformity of land use standards within the

scenic area, such variation appears entirely consistent with, and may even be

contemplated by, the Act. We note, in that regard, that the Act specifically places

jurisdiction to review appeals taken from commission actions in the state

courts of Washington and Oregon , but does not specify any standard of

review. One Washington court has responded to that circumstance by applying

the standards of review set out in its own administrative procedures act when

it is called upon to review a commission action, (11)

while Oregon courts use a standard of review that the legislature specifically

adopted for review of commission actions, now codified at ORS 196.115(3)(c) to

(e). Although we acknowledge that the interpretation of statutes arguably is a

different matter, the fact that the Act by omission creates a situation in

which Oregon and Washington are free to apply different standards of review to commission

actions suggests that uniform treatment may not be the objective that

Congress sought to achieve under the Act, as the commission suggests.

In the end, we think that the

applicability of Chevron turns on a single question -- whether the

federal interpretive methodology (which, as discussed, we are bound to apply)

would require it. And the answer to that question, as it turns out, is itself a

function of congressional intent: The United States Supreme Court, which first

announced the Chevron standard, has explained the standard in terms of a

congressional intent or expectation -- specifically, a congressional

expectation, implied from the agency's "general conferred authority"

and other circumstances, that the agency will "be able to speak with the

force of law when it addresses ambiguity in the statute or fills a space in the

enacted law." United States v. Mead Corp. , 533 US 218, 229 , 121 S

Ct 2164 , 150 L Ed 2d 292 (2001); see also Smiley v. Citibank (South

Dakota), N.A. , 517 US 735, 740-41 , 116 S Ct 1730 , 135 L Ed 2d 25 (1996) (Court

accords deference to agencies under Chevron because of a presumption

that Congress, "when it left ambiguity in a statute [that was] meant for

implementation by an agency, understood that the ambiguity would be resolved,

first and foremost by the agency [rather than the courts.]"). According

to the Court, when circumstances suggest that such an intent or expectation

exists,

"a reviewing court has no business rejecting an

agency's exercise of its generally conferred authority to resolve a particular

statutory ambiguity simply because the agency's chosen resolution seems unwise,

but is obliged to accept the agency's position if Congress has not previously

spoken to the point at issue and the agency's interpretation is

reasonable."

Mead Corp. , 533 US at 229 (citations omitted).

It follows that, to resolve whether

the commission's interpretations of the Act are entitled to Chevron

deference, we must determine whether the commission's "generally conferred

authority" or other aspects of the Act imply a congressional expectation

that the commission will "speak with the force of law" when it

addresses ambiguities and gaps in the statute. (12)

A strong indicator of such an expectation, according to the cases, is express

congressional authorization to engage in rulemaking and adjudication with

respect to the matters under review. See, e.g., EEOC v. Arabian American

Oil Co. , 499 US 244, 257 , 113 L Ed 2d 274 , 111 S Ct 1227 (1991) (suggesting

that no deference is warranted when agency is not authorized to promulgate

rules). That inference is particularly strong when that authorization provides

for formal administrative procedures designed to "foster the fairness and

deliberation that should underlie a pronouncement of such force." Mead

Corp. , 533 US at 230 .

Applying the foregoing considerations

to the present case, it appears that, to the extent that the management plan

purports to carry out the purposes of the Act in a way that includes resolving

ambiguities in or filling in gaps in the Act, the commission is entitled to Chevron

deference. The Act clearly contains gaps that the commission is charged with filling.

Indeed, Congress has directed the commission to "adopt a management plan

for the scenic area," which must be based on resource inventories and land

use designations that the Act requires the commission to develop, which must be

"consistent with" certain specified statutory standards, 16 USC §

544d(c)(1)(2) and (3), and which, once adopted, will effectively control land

use actions within the scenic area, 16 USC § 544e. That would seem to be the

precise sort of delegation of authority that, according to Mead and

similar cases, indicates a congressional expectation that the commission will

"speak with the force of law" in filling the significant gaps left

open by the statute. Moreover, to the extent that the Act authorizes the commission

to develop and adopt a management plan (a documentary product that in every

relevant sense is a rule or a compilation of rules), requires the commission to

conduct public hearings and solicit public comment before adopting a final management

plan, 16 USC § 544d(e), and requires the commission to adopt and follow other administrative

procedures that would appear to be designed to foster fairness and

deliberation, 16 USC § 544c(b), (13)

the commission stands well within the mainstream of agencies whose

interpretations of their organic statutes have been deemed worthy of Chevron

deference.

Petitioners argue that Chevron

is a federal doctrine that applies only to agencies and instrumentalities of

the United States, and that, whatever else it may be, the commission is not

a federal agency. Petitioners note, in that regard, that the Act expressly

provides that the commission "shall not be considered an agency or

instrumentality of the United States for the purpose of any Federal Law."

16 USC § 544c(a)(1)(A). However, none of the federal cases that discuss and

apply Chevron to agency actions appears to focus on the agency's status

as a federal agency. Although the cases, of necessity, generally do pertain

to federal agencies, their focus is on the nature of Congress's delegation of

authority to the agency, rather than the agency's federal status.

Petitioners also argue that the commission

is not a recipient of a congressional delegation of authority but, instead,

derives its authority from an interstate agreement and, thus, from the two

member states. Petitioners acknowledge that Congress gave consent for

Oregon and Washington to enter into an interstate compact, but it notes that Congress

did not require the states to do so. Petitioners contend that, under

those circumstances, Oregon and Washington must be deemed to have created the commission

and to be the source of its authority to develop and implement the management plan.

We disagree. The Act reveals a far

greater Congressional role in the creation of the commission and the

development of the management plan than petitioners' argument acknowledges. In

addition to memorializing Congress's consent to an interstate compact, the Act provides

for the formation of an interstate commission to administer that compact,

describes in relatively fine detail the structure of that body and how its members

will be appointed, requires the commission to adopt a management plan,

describes the process that the commission must use for developing the management

plan, and provides standards to which the resulting management plan must

adhere. (14)

In short, even if Oregon and Washington are the parties who enter into the

compact, it is a compact of Congress's design. Of particular relevance here,

it is Congress -- not the states -- that determined what powers and

responsibilities would be delegated to the commission and what procedures the commission

must follow in carrying out its responsibilities.

In the end, we conclude that, in 16

USC §§ 544 -544p, Congress delegated authority to the commission that, under

the federal methodology that we are bound to apply, implies a congressional

expectation that the commission will "speak with the force of law"

when it addresses ambiguities and gaps in the statutory scheme. The commission's

interpretations of the Act therefore are entitled to the level of deference that

the Chevron doctrine prescribes. That means that, if the Act is

ambiguous with respect to some matter, the commission's construction must be

upheld, unless it is unreasonable. Chevron , 467 US at 842-44 .

3. Should

courts defer to the commission's interpretations of the Act that are

articulated for the first time on appeal?

As petitioners point out, a

conclusion that the Chevron doctrine applies in this case on judicial review

does not mean that any and every interpretation of the Act that the commission might

offer to this court is entitled to deference. Federal courts do not, for

example, accord Chevron deference to post hoc rationalizations

offered by an agency's lawyers, when the agency itself has not articulated a

position on the issue. Bowen v. Georgetown University Hospital , 488 US

204, 212-13 , 109 S Ct 468 , 102 L Ed 2d 493 (1988). (15)

Neither shall we. But our acceptance of that distinction in principle does

not mean that we agree with petitioners that the Court of Appeals improperly

deferred to various interpretations of the Act that the commission articulated

in its briefs. That determination must be made on an argument-by-argument (or

interpretation-by-interpretation) basis.

4. Does

the management plan comply with the Scenic Area Act's mandate to protect scenic

resources from cumulative adverse effects?

The Scenic Area Act provides, among

other things, that the contemplated management plan "shall include

provisions to * * * require" that commercial, residential, and mineral

resource development occurring outside of urban areas "take place without adversely

affecting the scenic, cultural, recreation, or natural resources of the

scenic area." 16 USC §§ 544d(d)(7), (8), and (9) (emphasis added). For

purposes of those and all other provisions of the Act, "adversely

affecting" is defined as

"a reasonable likelihood of more than moderate adverse

consequences for the scenic, cultural, recreation or natural resources of the

scenic area, the determination of which is based on

"(1) the context of a proposed action;

"(2) the intensity of a proposed action, including the

magnitude and duration of an impact and the likelihood of its occurrence;

"(3) the relationship between a proposed action and

other similar actions which are individually insignificant but which may have

cumulatively significant impacts ; and

"(4) proven mitigation measures which the proponent of

an action will implement as part of the proposal to reduce otherwise

significant affects to an insignificant level."

16 USC § 544 (a) (emphasis added).

Based on the foregoing provisions,

petitioners argued to the Court of Appeals that the plan must include standards

that protect the Gorge's scenic resources from adverse effects, including cumulative

adverse effects, caused by commercial, residential, and mineral resources

development. Petitioners asserted that the management plan violates that

requirement insofar as it contains "no standards, guidelines, criteria, or

methodology for determining what causes cumulative adverse impacts to scenic

resources, how to measure such impacts, or how they are regulated." (16)

The Court of Appeals concluded,

however, that

"the Act contains no provision requiring the commission

to spell out specific standards for determining, in advance, what causes

adverse cumulative impacts to scenic resources. To the contrary, the Act makes

quite clear that what constitutes an 'adverse effect,' of which cumulative

effects are a component, is a matter determined in the context of specific

applications in light of their intensity, their relationship with other similar

actions, and any mitigation measures that may be required. 16 USC § 544 (a).

The statute is unambiguous on that point. But even if that were not so, we

would arrive at the same conclusion under the deferential standard that Chevron

requires. The commission's reading of the Act to not require more detailed a

priori standards for determining adverse cumulative effects is at least a

reasonable construction of the statute."

Friends of Columbia Gorge , 215 Or App at 586 .

Petitioners argue that the Court of

Appeals is wrong about what the Act requires. They contend, first, that the

Act "expressly requires the commission to include 'standards' in the management

plan for preventing adverse effects to scenic resources, 16 USC § 544d(d), and

the Act's definition of 'adversely affect' includes cumulative impacts, 16 USC §

544 (a)(3)." We note, respecting this argument, that the three provisions

at issue, 16 USC §§ 544d(d)(7), (8), and (9), require the commission to include

"provisions" in the management plan that "require" that

commercial, residential, and mineral resource development take place without

adversely affecting scenic resources. The requirement that the management plan

itself include such provisions is a "standard" that the management plan

must meet, but nothing in the Act states that the required provisions must themselves

take the form of "standards."

Still, we agree with petitioners that

standards of some sort are required. The relevant provisions, 16 USC §§

544d(d)(7), (8) and (9), direct the commission to include provisions in the management

plan that "require" that development occur without causing more than "moderate"

adverse effects, including adverse cumulative effects, to scenic

resources. If those requirements are to be enforceable, implementing agencies

must have some basis for determining when they have -- or have not -- been met.

The management plan must contain provisions that by some means "require"

that residential, commercial, and mineral resource development occur without

causing adverse cumulative effects to scenic resources. (17)

The commission responds that the management

plan does contain such provisions. It points, first, to a guideline that

provides:

"Determination of potential visual effects and compliance

with visual subordinance policies shall include consideration of the cumulative

effects of proposed developments."

Management Plan, Part I, ch 1 (Scenic Resources), GMA

Provisions, Key Viewing Areas, GMA Guidelines 3. The referenced "visual subordinance

policies" appear to be summarized by a related policy, (18)

which provides, in part, that,

"[e]xcept for new production and/or development of

mineral resources, new development on lands seen from key viewing areas [ (19) ] shall be visually

subordinate to its landscape setting."

Management Plan, Part I, ch 1 (Scenic Resources), GMA

Provisions, Key Viewing Areas, GMA Policies 2. (20)

A related guideline similarly provides:

"Each development shall be visually subordinate to its

setting as seen from key viewing areas."

Management Plan, Part I, ch 1 (Scenic Resources), GMA

Provisions, Key Viewing Areas, GMA Guidelines 2.

The commission also contends that the

plan regulates and precludes cumulative adverse effects on scenic resources at

a "landscape setting" level. It notes that the management plan

describes and maps 13 different "landscape settings" (21)

occurring in the scenic area and sets out various policies and guidelines that are

directed at "maintaining the integrity" of each of them. For example,

"[n]ew developments shall be compatible with their

landscape setting and maintain the integrity of that setting. Expansion of

existing developments shall be compatible with their landscape setting and

maintain the integrity of that setting to the maximum extent possible."

Management Plan, Part I, ch 1 (Scenic Resources), GMA

Provisions, Landscape Settings, GMA Policies 1. And

"[m]aintenance of landscape settings shall be a key

consideration in determining minimum parcel sizes for GMA land use

designations."

Id ., GMA Policies 4.

Finally, the commission observes that

the 2004 revisions include provisions calling for development and

implementation of "scenic highway corridor strategies" for Interstate

84 and SR 14, the two principal highways that run through the Gorge, which strategies

would include design guidelines directed at protecting scenic resources along

those corridors. (22)

The import of those provisions and design guidelines to the present

"cumulative effects" issue is unclear, but we assume that the commission

points to them as evidence that it has developed, and will continue to develop,

guidelines designed to maintain overall scenic conditions at a certain

level along the I-84 and SR-14 corridors, thereby protecting scenic resources along

those corridors from adverse cumulative effects. (23)

We are persuaded that at least some

of the cited provisions "require" that commercial, residential, and

mineral resource development take place without adversely affecting scenic

resources. In particular, the Key Viewing Areas policies and guidelines require

each new development to be "visually subordinate" to the relevant

"setting" or "landscape setting" and expressly provide that

the determination of visual subordinance must include an assessment of

cumulative effects. When those "key viewing areas" policies and guidelines

are read together, it is clear that the management plan requires implementing

agencies to make such a cumulative impacts determination each time that they

are presented with a development application, and to prohibit development that would

adversely affect scenic resources.

Petitioners' argument reflects a

basic dissatisfaction with the management plan's case-by-case approach to cumulative

impacts, perhaps because petitioners believe that the responsible agencies --

the counties -- have not meaningfully implemented it. But that problem -- if

it exists -- relates to how the counties apply the management plan, not to the plan's

consistency with the Act. We conclude that the provisions in the management plan

requiring planners to take cumulative impacts into account when determining,

for each development proposal, how the visual subordinance standard can be

achieved, are consistent with 16 USC §§ 544d(d)(7), (8), and (9) and 16 USC §

544 (a) -- that is, the plan contains provisions requiring that development in

the scenic area take place without causing adverse effects, including

cumulative effects, to scenic resources.

As noted, the commission also

contends that certain of the guidelines and policies in the management plan

reflect a "landscape setting" approach to the requirement that

development occur without causing adverse cumulative effects to scenic

resources. As we discuss below in analyzing a similar question relating to

adverse cumulative effects on natural resources, such a landscape-based

approach theoretically could fulfill the statutory requirements that development

occur without causing adverse cumulative effects. However, we have no occasion

to consider the particulars of the commission's theory with respect to adverse

cumulative effects on scenic resources, because we already have concluded that

the management plan fulfills the statutory requirements at issue insofar as it requires

consideration of adverse cumulative effects before development is permitted. In

short, we conclude that the management plan complies with the statutory

requirements at issue. The Court of Appeals correctly rejected petitioners'

claim of error in that regard.

5. Is the

policy that the parties identify as "GMA Scenic Resource Policy 1"

inconsistent with the Act insofar as it allows development projects that will

adversely affect scenic resources to go forward?

The revisions to the management plan

include a scenic resources policy that provides:

"Except for production and/or development of mineral

resources and disposal sites for spoil materials from public road maintenance

activities, nothing in the key viewing areas or landscape settings guidelines

in this chapter shall be used as grounds to deny proposed uses otherwise

authorized by the land use designation. However, the guidelines may affect the

siting, location, size, and other design features of proposed developments, and

compliance with them is mandatory."

Management Plan, Part I, ch 1 (Scenic Resources), GMA

Provisions, Overall Scenic Provisions, GMA Policies 1.

Petitioners argue that that policy is

inconsistent with provisions in the Act -- specifically, 16 USC §§ 544d(d)(7), (8), and (9) -- that

require that development take place without adversely affecting scenic

resources. Petitioners contend that the policy can be read in only one way --

as requiring implementing agencies to approve proposed developments that do not

comply with the management plan's scenic protection guidelines and that

therefore "adversely affect" scenic resources. (24)

The commission, in its brief to this

court, appears to accept petitioners' assessment that the challenged policy

requires agencies to approve projects that do not comply with key viewing areas

and landscape setting guidelines. However, the commission argues that

petitioners are wrong in assuming that a failure to meet key viewing area and

landscape setting guidelines necessarily results in an adverse impact on scenic

resources. The commission notes that, according to the Act, the determination

of "adverse affect" requires consideration of the context of a

proposed action and other factors. 16 USC § 544 (a)(1). The commission

concludes that the requirement that the context of a proposal be considered

"is important because if the context makes strict

compliance with the key viewing areas and landscape settings guidelines

impossible, then this policy allows some flexibility to permit agencies to

approve the development -- assuming, of course, that it does not cause an

adverse effect."

We do not accept either petitioners'

or the commission's explanation of the policy. Although the first sentence of

the policy tells permitting agencies that they cannot use the scenic guidelines

as a basis for denying a proposed use , the second sentence

provides in no uncertain terms that compliance with the guidelines that control

siting, design, and other conditions of use -- which are designed to ensure

that scenic resources are not adversely affected -- "is mandatory." The

two provisions do not conflict. The second simply qualifies what would be an

absolute grant of authority in the first sentence, if that sentence stood

alone: Although a county cannot deny an application for an otherwise

permissible use outright, the applicant must accept any conditions -- even

draconian ones -- that are necessary to ensure that the development take place

without affecting scenic resources and complies with the guidelines. (25)

If the applicant does not or cannot sufficiently alter the proposal to satisfy

the conditions required by the second sentence, permission to carry out the

proposed activity must be denied. Petitioners' argument in that respect claims

too much.

6. Does

the management plan comply with the Scenic Area Act's requirement that it

protect natural resources from cumulative adverse effects?

Petitioners' argument with respect to

this assignment of error recalls its earlier argument that the management plan

violates the Scenic Area Act's mandate to protect scenic resources from

cumulative adverse effects. Petitioners again rely on the definition of

"adversely affect" in 16 USC § 544 (a) (set out above, 346 Or at ___

(slip op at 22) and on 16 USC §§ 544d(d)(7), (8), and (9), which call for

provisions in the management plan "requir[ing]" that commercial,

residential, and mineral resource development occurring outside of urban areas

"take place without adversely affecting the scenic, cultural, recreation,

or natural resources of the scenic area." They reasonably and correctly propose

that the management plan must include provisions that require that development not

cause more than moderate adverse effects, including adverse cumulative effects,

to natural resources in the scenic area. And they argue (much as they did with

respect to the plan's treatment of scenic resources) that the management plan does

not include provisions of that sort.

The present inquiry differs from our

previous inquiry into the management plan's handling of cumulative effects to scenic

resources in one important respect: The chapter of the management plan devoted

to protection of natural resources contains no policy or guideline that

is equivalent to the noted key viewing areas, guidelines that require that each

development shall be visually subordinate to its setting, the GMA, and that

explicitly require that determination of compliance with that visual

subordinance policy include consideration of cumulative effects. Management

Plan, Part I, ch 1 (Scenic Resources), GMA Provisions, Key Viewing Areas,

GMA Guidelines 2, 3. As discussed, those two guidelines, in combination, satisfy,

on a case-by-case basis, the statutory directive that the management plan

require that development take place without causing adverse cumulative effects

to scenic resources. See 346 Or at __ (slip op at 28).

The commission agrees that, with

regard to natural resources, the management plan does not require a

case-by-case determination of whether a development causes any adverse

cumulative effect. The commission asserts, however, as it did in the Court of

Appeals, that the Act does not require it to prevent adverse cumulative effects

on natural resources in any particular way and that it has chosen to confront

the issue using a "landscape approach" rather than through a proposal-by-proposal

examination of cumulative effects. The commission cites ten provisions in the management

plan that, in its view, reflect that landscape approach. They are:

Management Plan, Part II, ch 1 (Agricultural Land),

GMA Provisions, Large-Scale and Small-Scale Agriculture, GMA Policies, Land Use

Policies 5C (stating that, for land designated as Agricultural Land, minimum

lot sizes shall be established that are adequate to maintain agricultural

operation and that "[t]ake into account the common field size for crops or

livestock, adjacent uses, parcel sizes in the area, common size or economic

unit for farms and ranches in the area, the existing landscape setting, wildlife

habitat, scenic sensitivity, and other factors").

Management Plan, Part II, ch 2 (Forest Land), GMA

Provisions, GMA Policies, Land Use Policies 7 (stating that a minimum parcel

size "shall be established for the creation of new parcels on lands

designated Small Woodland, considering the common size of forest units in the

area, the impact on management efficiency, the existing landscape setting, wildlife

habitat, and other resource factors").

Management Plan, Part II, ch 4 (Residential Land),

GMA Provisions, GMA Policies, Land Use Policies 1C (stating that, on land

designated as Residential Land, minimum parcel sizes for land divisions shall

be based on, among other things, protection of wildlife habitat, plant habitat,

and wetlands).

Management Plan, Part II, ch 3 (Open Spaces), GMA

Provisions, GMA Policies 8 ("Those wetlands with remarkable values, such

as sensitive wildlife habitat or rare plant species, that are susceptible to

disturbance from use and development shall be designated Open Space.").

Management Plan, Part II, ch 3 (Open Spaces), GMA

Provisions, GMA Policies 9 ("Open Space designations shall be applied to

those most significant and sensitive natural areas that are susceptible to

disturbance from use and development.").

Management Plan, Part II, ch 3 (Open Spaces), GMA

Provisions, GMA Policies 11 ("Habitat areas of animal species that are

classified as endangered or threatened by federal or state endangered species

acts or the Washington Wildlife Commission may be designated Open Space.").

Management Plan, Part II, ch 5 (Commercial Land), GMA

Provisions, GMA Policies, Designation Policies 2 ("Areas outside Urban

Areas shall be designated as Commercial where commercial use took place in the

immediate past or is now taking place and would not adversely affect scenic, natural,

cultural, or recreation resources.").

Management Plan, Part II, ch 6 (Recreation

Designations), GMA Provisions, Public Recreation, GMA Policies 2 ("Lands shall

be considered highly suitable for Public Recreation designation if they possess

significant potential for providing two or more of [certain listed

recreational] opportunities, are readily accessible, and lack hazards or highly

sensitive resources.").

Management Plan, Part II, ch 6 (Recreation

Designations), GMA Provisions, Commercial Recreation, GMA Policies 2C ("Lands

may be considered highly suitable for Commercial Recreation uses if [among

other things] * * * [p]otential development on the site would not adversely

affect sensitive wildlife habitat or plants, wetlands, or aquatic or riparian

areas. This may be achieved by either designing the development to avoid areas

containing such resources or by applying mitigation measure that reduce effects

on such resources to less than adverse levels.").

As can be seen, three of the cited provisions regulate the

determination of minimum parcel sizes in various land use designations, while

the remaining six provisions each set out a standard for determining whether

land is suitable for a particular land use designation. The commission's

explanation of how those provisions accomplish what is required ( i.e. , that

development occur without adverse cumulative effects to natural resources) consists

of a single sentence:

"These guidelines take a landscape approach to

protecting against cumulative adverse impact to natural resources -- through

the assignment of land use designations and minimum parcel sizes -- i.e. ,

pre-defining the types and amount of development appropriate to avoid

cumulative adverse effect on natural resources."

Before we consider the validity of

the commission's landscape approach, we focus on what the Act actually

requires. Petitioners argue that, contrary to the commission's position, the

Act mandates a case-by-case approach to cumulative effects. They note that the

Act's definition of the term "adversely affect" is written in terms

of the effects of "a proposed action," and that the determination of

"adverse effect" is to be based on, among other things, "the

relationship between a proposed action and other similar actions which are

individually insignificant but which may have cumulatively significant impacts."

16 USC § 544 (a).

We are not persuaded by petitioners'

analysis. The relevant provisions in the act unambiguously focus on a result

-- that development will have no adverse effect, including cumulative

effects, to natural resources -- rather than on any particular method for

achieving that result. See 16 USC §§ 544d(d)(7), (8), and (9). And

because the statute is unambiguous on that point, deference to the commission's

interpretation of the Act is not relevant. Although the Act may explain

"adverse effect" in terms of the effects of individual development

proposals, that does not mean that the commission could not adopt a broad

preventative approach: The commission might, for example, create a comprehensive

system of landscape-based regulations limiting the amount and type of

development to such a degree that adverse cumulative effects could not occur. But,

if the commission chooses to proceed in that way, the relevant provisions still

must fulfill the statutory mandate of requiring that development not

cause adverse cumulative effects to natural resources. And that, we think, is the

place where the commission's argument fails.

Certainly, some of the provisions

that the commission points to are designed to ensure, or would have the effect

of ensuring, that residential, commercial, and resource development do not

adversely affect natural resources in the particular land use designations

where they apply . The three Open Space designation provisions cited by the

commission are examples. Collectively, those provisions require that land with

the most significant and sensitive natural resources be placed in the

Open Space designation. Under those provisions, there is no potential, on Open

Space land, for adverse cumulative effects caused by residential, commercial,

or mineral resource development. That is so because, on Open Space land, no

residential, commercial, or mineral resource development is permitted at all .

The provisions pertaining to

Commercial Recreation land designation also would seem to be designed to

preclude the possibility of adverse cumulative effects on natural resources on

Commercial Recreation land . The commercial recreation policy cited by the commission

provides that land may be designated for Commercial Recreation uses only if

"potential development on the site would not adversely affect sensitive

wildlife habitat or plants, wetlands, or aquatic or riparian areas." That

policy would not preclude cumulative adverse effects in itself, but it must be

read in light of a related provision (not cited by the commission), which

specifies:

"Lands may be considered highly suitable for Commercial

Recreation uses if * * *

"* * * * *

"Potential development on the site would

not have cumulative adverse effects upon scenic, cultural, natural or

recreation resources , considering other development (existing or authorized

in the management plan) in the Scenic Area or in the vicinity of the

development."

Management Plan, Part II, ch 6 (Recreation Designations),

GMA Provisions, Commercial Recreation, GMA Policies 2E.

But most of the other provisions that

the commission cites do not accomplish what the cited Open Space and Commercial

Recreation provisions do. For example, the minimum parcel size provisions for

land designated for Agricultural or Forest use (where a significant level of residential

development is permitted) merely require that wildlife habitat (a single

component of the Gorge's natural resources) be "tak[en] into account"

or "consider[ed]" when setting the minimum parcel size. The

provisions contain no explicit or implied reference to adverse cumulative

effects and, more importantly, no requirement that decision-makers select a

minimum parcel size that eliminates any potential for adverse effects to

natural resources.

It is true that the commission makes some

effort to use land use designations and minimum parcel size determinations

to eliminate the potential for adverse cumulative effects to natural

resources. However, those efforts are incomplete. For Agricultural and Forest

land and for a large portion of the land designated as Residential, there is no

provision that even remotely demonstrates that the landscape-level approach will

avoid or eliminate the adverse cumulative effects that the Act prohibits. It

follows that the commission cannot successfully argue that, on a broad

landscape level, the management plan "requires" that development

occur without causing adverse cumulative effects to natural resources.

We already have noted (and the commission

has acknowledged) that no provision or standard requires case-by-case analysis

of the cumulative effects of commercial, residential, and mineral resource

development on natural resources. Although such case-by-case review might not

be necessary if the commission had adopted adequate alternatives, we are unable

to discern any other provisions that might address the adverse cumulative

effect problem. We conclude that the management plan fails to require that

residential, commercial, and mineral resource development take place without

causing adverse cumulative effects to natural resources. In that respect, it

violates the Act. The Court of Appeals erred in concluding otherwise.

7. Does

the management plan violate the Act insofar as it allows livestock grazing,

without any review of resource impacts, on most of the land in the scenic area?

Under the management plan, livestock

grazing is allowed "outright," i.e. , without any review, on almost

all land use designations. The only exceptions are Open Space land and

"Agriculture - Special land." Management Plan, Part II, ch 7

(General Policies and Guidelines), Uses Allowed Outright, All Land Use Designations

Except Open Space, GMA/SMA Guidelines 1A (permitting "agricultural

uses" outright in all land designations except Open Space); Glossary

(defining "agricultural use" to include "feeding, breeding,

management and sale of livestock"). Petitioners argue that that

arrangement "violates the Act's mandate to protect and enhance natural

resources," because livestock grazing has a high potential for adversely

affecting, inter alia , fish and wildlife habitat.

As the commission points out,

petitioners posit a general statutory mandate to "protect and enhance

natural resources" that simply does not exist. Certainly, the Act

provides that the management plan must "protect and enhance open spaces, "

16 USC § 544d(d)(3), which are defined, in part, in terms of natural resources

that are present on land designated as open space, 16 USC § 544 (l). (26)

But those natural resources are not relevant to petitioners' argument, because,

to the extent that grazing is allowed at all on Open Space land, it is subject

to review for "compliance with guidelines for the protection of * * *

natural * * * resources." Management Plan, Part II, ch 3 (Open

Spaces), GMA Provisions, GMA Guidelines, Review Uses -- All Lands Designated

Open Spaces: Gorge Walls and Canyonlands 1; Balch Lake Wetlands Area 1. The

Act also provides that the management plan must protect natural resources from

adverse effects caused by commercial, residential, and mineral resource uses ,

16 USC §§ 544d(d)(7), (8), and (9), but it does not establish an equivalent

requirement with respect to adverse effects caused by agricultural activities

(such as grazing).

Petitioners fall back on the fact

that one of the Act's stated purposes is "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." 16 USC

§ 544a(1). However, given that the Act also purports to support and

protect the economy of the Gorge, 16 USC § 544a(2), that it clearly sets a high

value on agricultural uses, including grazing, as an important component of that

economy, 16 USC §§ 544d(b)(2) and (d)(1), and that it sets out, in specific

terms, the circumstances in which protection of natural and other resources

must take precedence over economic values, (27)

the broad statement of purpose at 16 USC § 544a(1) simply cannot be read as mandating

protection of all natural resources in all circumstances and in every

part of the Scenic Area.

In short, we agree with the commission

that the Act does not require the management plan to protect all of the scenic

areas natural resources from adverse effects caused by agricultural uses. It

follows that the commission has not violated the Act by allowing livestock

grazing operations in most of the scenic area without prior review to determine

how those operations will affect natural resources. The Court of Appeals did

not err in rejecting that claim of error.

8. Does

the management plan violate the Act insofar as it fails to inventory and

protect geologic resources and require avoidance of residential and commercial

development within geological hazard areas?

Petitioners observe that the management

plan contains no guidelines that are specifically directed at protecting "geological

resources" or avoiding "geological hazards." Petitioners argue

that the management plan's failure to address those topics amounts to a

violation of the Act. Petitioners acknowledge that the Act nowhere uses the

terms "geologic resources" and "geological hazard areas."

They argue, however, that geologic resources and hazards are "natural

resources" within the meaning of the Act and that, consequently, the Act

requires the management plan to inventory and protect geological resources

to the extent that it requires the plan to inventory and protect natural resources.

Petitioners point to several provisions of the Act as relevant to that

proposition: 16 USC § 544a(1) (purpose of Act is to "protect and provide

for the enhancement of the * * * natural resources of the Columbia River

Gorge"); 16 USC §§ 544d(d)(7), (8), and (9) (management plan must include

provisions requiring that commercial, residential and mineral resource

development "take place without adversely affecting the * * * natural

resources of the scenic area) (emphasis added); 16 USC § 544d(a)(1)(A) (commission

shall complete a resource inventory documenting "all existing land uses, natural

features and limitations , * * *") (emphasis added); and 16 USC § 544d(c)(1)

(management plan must be "based on the results of the resource inventory

developed pursuant to subsection (a)(1) of this section").

The Court of Appeals rejected

petitioners' claim, but it did not directly decide whether "geological

resources" and "geological hazards" were "natural

resources" as that term is used in the Act. Rather, the court appears to

have assumed that geological resources and hazards were covered by the

statutory term, and then to have concluded that nothing in the Act required the

management plan to specifically address them or any other category of

natural resources. The court explained:

"Native plants are a natural resource in the scenic

area, but that does not mean that the Act requires the management plan to

include provisions specifically addressing the protection of each and every

one. Likewise, fall foliage in the scenic area is a physical characteristic,

but that does not mean that the management plan must include provisions

specifically pertaining to that phenomenon. If Congress had wanted such

specifics included in the commission's management plan, all it had to do was

say so."

Friends of Columbia Gorge , 215 Or App at 596 .

That explanation may be correct as

far as it goes, but it does not speak to the essential question. The Act

provides that the management plan must include provisions requiring that

commercial, residential, and mineral resource development take place without

adversely affecting the scenic area's natural resources. 16 USC §§

544d(d)((7), (8), and (9). (28)

If geological resources are natural resources within the meaning of the

Act, then the management plan must include provisions that will preclude

adverse effects to those resources -- whether or not those provisions specifically

identify "geological resources" as their object. The management plan

could satisfy that requirement without any specific mention of geological

resources by, for example, setting out a catch-all provision directed at

protecting all "natural resources." But the essential point

is that the management plan must protect all "natural

resources" -- whatever that term may encompass.

It follows that the first order of

business, in evaluating petitioners' claim, is to determine whether geological

resources and hazards are in fact "natural resources" for purposes of

the Act. The Act itself does not define that term, and the term is not one that

has obvious parameters. (29)

In fact, the term conveys the very kind of ambiguity that, according to the applicable

standard of review, (30)

might warrant deference to the commission's reasonable construction of the

term.

And here the difficulty arises. As

petitioners note, the commission has construed the term: The glossary

to the management plan defines "natural resources" to include " naturally

occurring features including land , water, air, plants, animals (including

fish), plant and animal habitat, and scenery." That definition is sufficiently

broad that, whatever "geological resources" and "geological

hazards" might be, they fall within it. Petitioners therefore conclude

that, because geological resources fall within the commission's own

definition of "natural resources," the commission must include

provisions to protect them in the management plan, as the Act requires.

But there is another

definition of the term "natural resources" that appears in the management

plan. The chapter of the management plan that is devoted to "Natural

Resources" contains its own, narrower definition of the term: "For

this chapter, natural resources mean wetlands, streams, ponds and lakes,

riparian areas, wildlife and wildlife habitat, rare plants, and natural areas." (31)

Management Plan, Part I, ch 3 (Natural Resources). Given that the

Natural Resources chapter is the single part of the plan that deals most

directly with the mandate that is the focus of petitioners' argument (that

natural resources be protected from adverse effects of commercial, residential,

and mineral resource development), it is arguable that that chapter definition,

and not the one that appears in the glossary, is the one that is relevant to

the present analysis.

But is that definition of "natural

resources" -- the one that appears in the "Natural Resources"

chapter itself, and which clearly does not encompass the geological resources

and hazards that petitioners are concerned with -- sufficiently reasonable that

it can demand our deference under the Chevron doctrine? It could be.

As we have observed, 346 Or at ___ and n 29 (slip op at 44 and n 29), "natural

resources " is an indefinite term that, along with its clear basis in the

world of naturally occurring objects, conveys in a far more vague sense the

idea that those objects must be valuable or beneficial. Thus, the narrower

definition now under discussion could reflect the commission's considered

determination as to which natural features of the scenic area are valuable in

that sense, and its list of phenomena that qualify as "natural

resources" is not inherently unreasonable. Neither would it necessarily

be unreasonable that the commission had excluded a whole category -- geological

features -- from its definition of "natural resources." The commission

could rationally conclude that many "geological resources," e.g. ,

dirt qua dirt, are not valuable in and of themselves, and that

geological features that are valuable for a particular reason can and

should be protected as such -- for example, as scenic resources or as a

component of animal and plant habitat.

Our problem, however, is that we see

no real evidence of a conscious commission choice either way. The management plan

itself contains two competing definitions, both of which the commission

apparently considers permissible under the Act. As our discussion of each

definition indicates, we find both to be permissible under Chevron . But

we decline to defer to the commission, unless and until it takes some action

that reflects a considered choice between the two definitions, or the

abandonment of one of them. This case is being remanded to the commission for

other reasons. We therefore also direct that the commission on remand

specifically address which of the two definitions of "natural

resources" it is relying on, preferably doing so in light of petitioners'

express concerns respecting areas of geologic hazard.

9. Does

the management plan comply with the Scenic Area Act's requirement that it

protect cultural resources from cumulative adverse effects?

Petitioners here raise a further issue

pertaining to the management plan's treatment of cumulative adverse effects. They

argue that, because the management plan does not (in their view) provide any

standards or mechanism for assessing the cumulative effects of development on cultural

resources, it does not and cannot satisfy the Act's mandates, set out at 16 USC

§§ 544d(d)(7), (8) and (9), that provisions be included that require that commercial,

residential, and min e ral resource development take place without causing

adverse cumulative effects to those resources. Petitioners again argue that,

in light of the proposal-based wording of the definition of "adversely

affected," those mandates must be read as requiring consideration of cumulative

effects at the time each development is proposed. We reject that argument for

the same reason that we rejected it in the context of petitioners' arguments

about cumulative effects on natural resources: (32)

The cited mandates unambiguously focus on a desired result (that development

shall have no adverse effects, including adverse cumulative effects, to

cultural resources), but they say nothing about how that result is to be

achieved. The order in which petitioners wish to see the adverse effects

analyses carried out is not mandated by the Act.

A question remains as to whether the management

plan contains other provisions that satisfy those mandates. The commission contends

that a number of provisions in the management plan speak to those mandates. Specifically,

the commission relies on:

Management Plan, Part I, ch 2 (Cultural Resources),

GMA Provisions, GMA Policies 5 ("Cultural resource surveys, evaluations,

assessments, and mitigation plans shall generally be conducted in consultation

with Indian tribal governments and any person who submits written comments on a

proposed use (interested person).").

Management Plan, Part I, ch 2 (Cultural Resources),

GMA Provisions, GMA Policies 6 (Until a cultural resource survey of the GMA is

complete, a reconnaissance survey shall be required for all proposed uses

except the modification, expansion, replacement or reconstruction of existing

buildings and structures and proposed uses that would involve little or no

ground disturbance.).

Management Plan, Part I, ch 2 (Cultural Resources),

GMA Provisions, GMA Policies 1 ("Generally, well defined geographic areas

that possess large concentrations of cultural resources shall be designated

Open Space.").

Management Plan, Part II, ch 4 (Residential Land),

GMA Provisions, GMA Policies, Land Use policies 1C(5) ("minimum parcel

sizes for land divisions shall be established, based upon,' among other things,

protection of 'cultural resources").

Management Plan, Part II, ch 6 (Recreation

Designations), GMA Provisions, Public Recreation, GMA Policies 2 (Lands shall

be considered highly suitable for Public Recreation designation if they possess

significant potential for providing certain listed public recreation

opportunities, including enhancement of cultural resources, and lack "highly

sensitive resources.").

Management Plan, Part II, ch 6 (Recreation

Designations), GMA Provisions, Commercial Recreation, GMA Policies 2D ("Lands

may be considered highly suitable for Commercial Recreation if," among

other things, "[p]otential development on the site would not adversely

affect significant cultural resources.").

The commission does not explain the import of those

provisions, except to say -- much as it did in response to petitioners' other

"cumulative effects" arguments -- that the management plan takes a

"landscape approach" to protecting cultural resources from adverse

cumulative impact. We assume that the commission means that the provisions

pertaining to land use designations and minimum parcel sizes, which set basic

limitations on the kinds and amount of development that may occur in the

various parts of the scenic area, are designed to eliminate even the

possibility that development will cause adverse cumulative effects to cultural

resources.

Only the last four of the cited

provisions appear to speak to that approach. And, as with the commission's "landscape

approach" to adverse cumulative effects on natural resources, those four

provisions do not appear to us to deliver what is required. In fact, collectively,

the provisions regulate development on only a small part of the scenic area

lands, and do not even purport to regulate some of the land where commercial

and residential development is most likely to occur (lands designated for Commercial,

Agricultural, and Forest uses). Moreover, at least two of the cited provisions

are unsuited to the sort of landscape scale regulation that the commission

proposes to use, even on the lands to which they apply: Although the cited

Public Recreation policy reflects a general concern that Public Recreation land

designations be made with an eye toward avoiding "highly sensitive resources,"

and the cited Residential Land Use policy provides that minimum parcel size on

residential lands shall be "based on" protection of cultural

resources, neither the policies themselves, nor any of the policies or

provisions upon which they operate, actually requires that development on

Public Recreation or Residential land be restricted to a level that will

preclude any adverse cumulative effects to cultural resources.

Neither do the first two provisions cited

by the commission appear to fulfill the statutory mandates. Rather, they

merely require that "reconnaissance surveys" be performed for any

proposed use that involves more than a minimal level of ground disturbance, to

determine whether cultural resources might be affected. Such surveys could be

a useful tool for identifying cultural resources that need protection,

but they do nothing in and of themselves to require that such resources not

be adversely affected, either individually or cumulatively, by commercial,

residential, or mineral resource development. Neither, as far as we can tell,

are they connected to other provisions that would preclude such adverse

cumulative effects.

In sum, the provisions that the commission

has cited to this court do not support the commission's claim that the management

plan precludes adverse cumulative effects to cultural resources at a landscape

level: They do not appear to be directed toward requiring that

commercial, residential, and mineral resource development not cause adverse

cumulative effects to cultural resources. Neither have we been able to

identify, on our own, other provisions that satisfy the statutory mandate. We

conclude that, with respect to adverse cumulative effects to cultural

resources, the management plan does not comply with the standards set out at 16

USC §§ 544d(d)(7), (8), and (9).

10. To

the extent that the management plan permits certain small scale fish processing

operations on parcels in the scenic area that are designated as Residential,

Small Woodland, and Small-Scale Agriculture, does it violate the Act's

prohibition on industrial development outside of the scenic area's urban areas?

Among the revisions to the management

plan that the commission adopted in 2004 are a number of provisions that appear

under the heading "Small Scale Fishing Support and Fish Processing

Operations." The most significant of those provisions provides:

"Small-scale fishing support and fish processing

operations in conjunction with a family-based commercial fishing business may

be allowed on parcels designated GMA Residential, GMA Small Woodland or GMA

Small-Scale Agriculture, subject to the following conditions * * *."

Management Plan, Part II, ch 7 (General Policies and

Guidelines), Small Scale Fishing Support and Fish Processing Operations, GMA

Guidelines 1. The guideline then sets out various limitations and conditions

that apply to fishing support and fish processing use: such operations are

allowed only on parcels that are contiguous with the Columbia River and that

include a lawful dwelling; at least one permanent resident of the dwelling must

participate in the operation; the operation may employ only residents of the

dwelling and up to three outside employees; the operation must take place in a

portion of the dwelling, not to exceed 25 percent of the area of the dwelling,

or in an accessory building that does not exceed 2,500 square feet; and the

operation shall support and process fish caught only by the residents of the

dwelling and by up to three outside employees. Id. The guideline also

describes the fishing support and fish processing activities that are allowed.

Of particular relevance is section 1B of the guideline, which lists the

approved fish processing activities:

"The following fish processing activities may be

allowed: cleaning, gutting, heading, and icing or freezing of fish that is

caught by the family-based commercial fishing business. Other fish processing

activities shall not be allowed, including, but not limited to, canning,

smoking, salting or brining for wholesale or retail sale."

Petitioners argue that the listed

fish processing activities are industrial activities and that, by permitting

them to occur on Residential, Small Woodland, and Small-Scale Agricultural

land, the commission has violated the Act's requirement that the management plan

"prohibit industrial development (33)

in the scenic area outside urban areas." 6 USC § 544d(d)(6). (34)

Petitioners rely on the definition of "industrial uses" provided by

the management plan itself:

"Any use of land or water primarily involved in:

"1. Assembly or manufacture of goods or

products,

"2. Processing or reprocessing of raw

materials, processing of recyclable materials or agricultural products not

produced within a constituent farm unit,

"3. Storage or warehousing, handling or

distribution of manufactured goods or products, raw material, agricultural

products, forest products, or recyclable materials for purposes other than

retail sale and service, or

"4. Production of electric power for

commercial purposes."

Management Plan, Glossary. Petitioners argue that the

approved fish processing activities -- "cleaning, gutting, heading, and icing

or freezing of fish" -- are industrial uses within the meaning of that

definition, because they involve processing, handling, and distribution of raw

material, i.e. , fish. The commission responds that the fish processing

activities permitted by the revision are sufficiently limited that they do not

qualify as "industrial uses" as defined by the management plan and

that allowing such activities on nonurban land designations does not violate

the Act's requirement that "industrial development" be confined to

urban areas.

We first note that, although agencies

are bound by their own rules, we afford particular deference to agencies'

interpretations of those rules. Federal courts have held that a federal

agency's construction of its own regulation is controlling unless it is

"plainly erroneous or inconsistent with the regulation." Auer v.

Robbins , 519 US 452, 461 , 117 S Ct 905 , 137 L Ed 2d 79 (1997). Oregon

courts are almost as deferential to Oregon agencies' interpretations of their

own rules, deferring to an agency's interpretation of its own rule if the

interpretation is plausible and not inconsistent with the rule, the rule's

context, or any other source of law. Don't Waste Oregon Com. v. Energy

Facility Siting , 320 Or 132, 142 , 881 P2d 119 (1994). Under either

framework, we will defer to the commission's interpretation of the management plan

as long as that interpretation is plausible.

Guided by that standard, we are

persuaded that the fish processing activities allowed by the revision are so

restricted that the revision does not permit "industrial use," as

defined by the management plan. Under the revision, the land on which the

processing activities occur must include a dwelling, only residents of the

dwelling and three other persons may participate in the processing activities,

the processing activities may occur only on a small part of the parcel (either

in a portion of the residence or in a single accessory building), and only fish

caught by the residents and up to three employees may be processed. Those

restrictions limit the processing activities to such a degree that, when

individuals use their land in the way described in the revision, the commission

plausibly may state that their "use" of their land cannot be

described as "primarily involved in" the processing of raw

materials. That is all that is required in order for us to defer to the commission.

The activities permitted by the fish processing revisions do not constitute

"industrial uses" as defined by the management plan, and the fish

processing revisions do not conflict with the Act's ban on "industrial

development" outside urban areas. The Court of Appeals correctly rejected

petitioners' claim of error.

11. Does

the management plan violate provisions in the Act specifying where commercial

uses may occur, given that it allows large-scale commercial events on lands

zoned for Agricultural, Forest, Public Recreation, and Residential uses?

The 2004 revisions to the management plan

set out guidelines pertaining to "commercial events," a category of

uses that "include[s] weddings, receptions, parties and other small-scale

gatherings that are incidental and subordinate to the primary use on a

parcel." Management Plan, Part II, ch 7 (General Policies and

Guidelines), Commercial Events, GMS Guidelines 1. In general, those guidelines

allow commercial events on all GMA lands

"except on lands designated Open Space or Commercial

Forest, subject to compliance with the following conditions and the scenic,

cultural, natural and recreation resource guidelines."

Management Plan, Part II, ch 7 (General Policies and

Guidelines), Commercial Events, GMS Guidelines 2. The conditions referred to include

requirements that the commercial event occur "in conjunction" with a

lawful winery, tasting room, bed and breakfast, commercial use, or dwelling

listed in the National Register of Historic Places, that the event involve no

more than 100 guests, that the owner of the subject parcel live on the parcel

and manage the use, and that the owner conduct no more than 18 day-long events

each year. Id.

Petitioners argue that, insofar as the

"commercial event" provisions permit a use that self-evidently is a commercial

use throughout most of the GMA, they are inconsistent with a provision of the

Act that requires that commercial uses be confined to urban areas and areas

designated by the commission as Commercial land. Petitioners cite 16 USC §

544d(b)(5), which requires the commission to

"designate areas in the scenic area outside special

management areas used or suitable for commercial development: Provided, That

such designation shall encourage, but not require, commercial development to

take place in urban areas and shall take into account the physical

characteristics of the areas in question and their geographic proximity to

transportation, commercial, and industrial facilities and other amenities." (35)

The commission responds that neither

the quoted provision, nor any other provision in the Act, requires that

commercial uses occur only in urban areas or on designated Commercial land.

The commission contends, in fact, that the quoted provision does not prohibit

anything, but simply requires the commission to designate some land within the

scenic area as suitable for commercial development based on the land's physical

characteristics and proximity to transportation and other amenities. The commission

asserts that it has fulfilled that obligation by designating various lands as

Commercial, Commercial Recreation, and Rural Center lands and by providing

guidelines for the development of those lands. In making those designations,

the commission adds, it has never made any determination that development that

is permitted on other designated lands cannot be accompanied by incidental and

subordinate commercial uses. To the contrary, it argues that the management plan

always has permitted some ancillary commercial uses -- cottage industries, produce

stands and the like -- in association with other permitted development throughout

the scenic area, except on Open Space land.

This is a classic situation in which

we cannot say that either proffered construction unquestionably is the one that

Congress intended. Certainly, it is not beyond reason to interpret 16 USC §

544d(b)(5), as petitioners have, as implying a legislative intention

that, once the commission selects areas that are particularly suitable for

commercial development, it must confine all extra-urban commercial uses to

those areas. On the other hand, the commission's view of the provision is more

in keeping with the provision's actual words: On its face, the provision says

nothing about confining ancillary commercial uses outside of urban areas to designated

Commercial lands.

The best case that can be made for

petitioners is that the provision is ambiguous with respect to the interpretive

issue before us. And, because it is ambiguous, we must defer to the commission's

interpretation, as long as it is not unreasonable. Chevron , 467 US at

842-43 . We do not find it to be so: The idea that Congress did not intend to

confine all incidental, subordinate and, in this case, intermittent commercial

uses to designated Commercial land is not inherently problematic. Neither are

we persuaded that any of the negative results that, according to petitioners, might

arise out of the application of commission's construction are so egregious that

they render that construction unreasonable. We conclude that the Act does not,

in fact, contain a requirement that all ancillary commercial activities occur

within urban areas or areas designated as Commercial land. It follows that the

Commercial Event provisions are not incompatible with the Act in the way that

petitioners suggest. The Court of Appeals correctly rejected petitioners'

claim of error.

Petitioners have persuaded us that

the revised management plan is in violation of the Scenic Act in a number of

respects, all of which we have identified in earlier parts of this opinion. We

remand to the commission to correct those violations by removing erroneous

provisions or by promulgating new provisions that satisfy the Act's

requirements.

The decision of the Court of Appeals is affirmed in part and reversed in part. The revisions to the management plan are upheld in part and invalidated in part, and the case is remanded to the Columbia River Gorge Commission for further proceedings.

1. The

secretary is charged with developing guidelines and designations, using a

similar process, for the SMA. 16 USC § 544f.

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2. The

commission consists of 13 members -- one from each of the six counties with

land that is within the scenic area's boundaries, who are appointed by the

governing bodies of their respective counties; three from Oregon, who are

appointed by the Governor of Oregon; three from Washington, who are appointed

by the Governor of Washington; and one ex officio , nonvoting

member, who is an employee of the United States Forest Service and who is

appointed by the Secretary of Agriculture. 16 USC § 544c(a)(1)(C).

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3. Much

of the day-to-day implementation of the management plan occurs at the county

level. The Act therefore requires counties within the scenic area to adopt

land use ordinances that are consistent with the management plan. 16 USC §§

544e(b), (c).

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4. The

revised management plan and the "original" management plan are

distinct plans for the purposes of this opinion. However, maintaining that

distinction can be confusing and, in any event, is unnecessary. In this

opinion, because the object of our review is the revised management plan adopted

by the commission in 2004, we refer to that version (and not to the original

1992 plan) as "the management plan" or "the plan."

The reader

also should be aware that, when we refer to the "management plan" in

this opinion, we are not referring to a paper document, but to the entire body

of law that comprised the revised management plan in 2004. As far as we can

tell, that body of law was not published in a single paper document. In 2004,

the commission did publish a compilation of the chapters of the management

plan that it had revised, but that document did not include the many chapters

of the management plan that had not been revised, but remained in

effect. The management plan also has been amended, as provided in 16 USC §

544d(h), on many occasions since 2004, and an up-to-date version, which

includes all revisions and amendments that currently are in effect, is

available online at http://www.gorgecommission.org . In this opinion,

for obvious reasons, when we cite provisions in the management plan, we make no

attempt to refer to a particular document, online or on paper, or to page

numbers therein. Instead, we simply refer to part, chapter, and provision

numbers.

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5. The

secretary concurred in the revised management plan in August 2004.

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6. The

Act provides that any person adversely affected by a final action of the

commission relating to the implementation of the Act may obtain judicial review

in the state courts of Oregon and Washington. 16 USC §§ 544m(b)(4), (6)(C).

ORS 196.115(2)(a) provides that, in Oregon, such review shall be in the Court

of Appeals.

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7. See

Sierra Club v. Bosworth , 510 F3d 1016, 1023-24 (9th Cir 2007) (declining to apply the Salerno

standard and discussing its inconsistent use in the federal courts).

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8. The

Chevron doctrine has been widely criticized. See, e.g. , Laurence

H. Tribe, I American Constitutional Law 997-1002 (3d ed 2000) ( Chevron ,

in combination with relaxation of nondelegation doctrine, threatens to

"cede large areas of the legal landscape to relatively unaccountable

federal agencies.").

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9. The

court identified, as the "usual rationales" for deferring to an

agency's interpretation, the principles of "congressional delegation"

and "separation of powers" and the agency's superior expertise with

respect to the subject matter. The court also concluded that the

notice-and-comment procedures required by the Act demonstrated that Congress

intended to require deference to the commission's interpretations. Friends

of Columbia Gorge , 215 Or App at 570-77 . We need not agree with the Court

of Appeals' summary of the rationales for the Chevron doctrine to agree

that the doctrine applies to the present case.

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10. The

commission cites, among other cases, People of California v. Tahoe Regional

Planning Agency, 766 F2d 1308, 1313 (9 th Cir 1985) (applying Chevron

deference to interstate compact agency); Seattle Master Builders v. Pacific

N.W. Elec. Power , 786 F2d 1359, 1370 (9 th Cir 1986) (applying Chevron

deference to Pacific Northwest Electric Power and Conservation Planning Council

(an interstate compact agency)); and NY State Dairy Foods v. Northeast Dairy

Compact , 26 F Supp 2d 249, 260, 265 (D Mass 1998) (applying Chevron

deference to regional compact agency's construction of its own authorizing

statute).

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11. See,

e.g. , Friends of Columbia Gorge v. Columbia River , 126 Wash App 363,

369-70, 108 P3d 134 (2005) ("The Act gives state courts jurisdiction over

most disputes * * *. Absent published procedural rules, therefore, we apply

the Washington Administrative Procedure Act, chapter 34.05 RCW.").

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12. Of course, Oregon courts do not operate on the same set of assumptions about

the intentions of the Oregon legislature. See generally Springfield

Education Assn. v. School Dist. , 290 Or 217, 221-30 , 621 P2d 547 (1980)

(explaining how authority to construe statutes is allocated between agencies

and courts depending on type of statutory term that is at issue).

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13. Under

16 USC section 544c(b), the commission must adopt regulations

"relating to administrative procedure, the making of

contracts, conflicts-of-interest, financial disclosure, open meetings of the

Commission, advisory committees, and disclosure of information consistent with

the more restrictive statutory provisions of either State."

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14. The

Act also provides, among other things, that the secretary will have authority

over certain parts of the scenic area, 16 USC § 544f, that the Oregon

Department of Transportation will develop a plan for restoring the Old Columbia

River Highway, 16 USC § 544j, that designated rivers and streams will be

subject to restrictions set out in section 7(a) of the Wild and Scenic Rivers

Act, 16 USC § 1278 (a), 16 USC § 544k, and that the secretary and commission

will provide technical assistance to the six counties in the scenic area, 16 USC

§ 544l. The Act also authorizes the appropriation of federal funds for

acquisition of land and for various specified projects and sets out procedures

for enforcing the provisions of the Act and for bringing actions against the

commission, the counties, and the secretary, 16 USC §§ 544m, 544n. All of

those provisions are part of the interstate compact that Congress had in mind,

and Oregon and Washington had no authority or permission to adopt a compact

that did not contain them.

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15. See

also Investment Co. Institute v. Camp , 401 US 617, 626-28 , 91 S Ct

1091 , 28 L Ed 2d 367 (1971) (in determining whether Comptroller of the Currency

authorization of banks' creation and operation of investment funds violated

Glass-Steagall Act, Court would not defer to interpretation of the relevant

provision offered by Comptroller's counsel, when Comptroller itself had not

expressly articulated any position at the administrative level as to the

meaning and impact of that provision). The United States Supreme Court has

explained that distinction on the ground that "'Congress has delegated to

the administrative official and not to appellate counsel the responsibility for

elaborating and enforcing statutory commands.'" Bowen , 488 US at

212 (quoting Investment Co. Institute , 401 US at 628 ).

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16. The

commission's response in the Court of Appeals focused primarily on its own good

intentions. It noted that, although the management plan addressed cumulative

impacts in a number of ways, commission staff had reported that that the plan's

cumulative impacts analysis could be improved and that the commission had been

determined to address the issue in the revision process. The commission

explained, however, that budget constraints had prevented it from acting on

that intention, but that it had developed a long-term plan for addressing the

topic. It concluded that it had "not abuse[d] its discretion to make no

changes to this topic."

The Court of Appeals correctly

rejected that argument as unresponsive to petitioners' challenge: "Either

the management plan, as revised, violates the Act or it does not. The fact

that the process by which the Commission arrived at the final product was a

reasonable one does not alter the lawfulness -- or unlawfulness, as the case

may be -- of the product itself." Friends of Columbia Gorge , 215

Or App at 578 . The court then supplied its own reason for rejecting

petitioners' argument -- that the Act did not require the "standards"

that petitioners were demanding.

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17. In

that respect, we think that the Act is unambiguous and that, as such, any claim

to deference under Chevron would be misplaced.

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18. Although

labeled a "policy," that statement is worded more like a directive or

guideline, and would seem to have a similar legal effect.

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19. "Key

viewing areas" are designated vantage points that provide "public

scenic viewing opportunities" -- generally, important public roads, parks,

and trails. Management Plan, Part I, ch 1 (Scenic Resources), GMA

Provisions, Key Viewing Areas, GMA Policies 1; Glossary.

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20. A structure or land use is "visually subordinate" to its

setting if it "does not noticeably contrast with the surrounding

landscape, as viewed from a specified vantage point." Management Plan,

Glossary.

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21. "Landscape

settings" are "the combination of land use, landform, and vegetation

patterns that distinguish an area in appearance and character from other

portions of the Scenic Area." Management Plan, Glossary .

The landscape settings designated in the plan include "Pastoral,"

"Coniferous woodland," "Oak-pine woodland,"

"Grassland," "Rural residential," "Residential,"

"Village," "River bottomlands," and "Gorge walls,

canyons and wildlands." For each landscape setting, the management plan

provides a general description of the land uses, landforms, and vegetation that

are typical, the types of recreational uses that are compatible with the

setting, a recommended parcel size for new land divisions, and a set of

"design guidelines" that are to be used to achieve visual subordinance

for both new and expanding developments. The design guidelines pertain to the

positioning and height of structures, the type of vegetation to be used for

screening, etc., and are often phrased in precatory, rather than mandatory,

terms. See generally Management Plan, Part I, ch 1 (Scenic

Resources), GMA Provisions, Landscape Settings.

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22. The

commission refers specifically to two "scenic travel corridors"

policies:

"A

scenic highway corridor strategy shall be developed and implemented for

Interstate 84 (I-84). The SR 14 Corridor Strategy (1996) and associated

documents shall continue to be implemented and updated as needed for Washington

State Route 14 (SR 14)."

Management Plan, Part I, ch 1 (Scenic Resources), GMA

Provisions, Scenic Travel Corridors, GMA Policies 1.

"The goals of the scenic corridor

strategies shall include: 1) providing a framework for future highway

improvements and management that meet Management Plan scenic guidelines and

public transportation needs; and 2) creating design continuity for the highway

corridor with the Scenic Area. Corridor strategies shall, at a minimum,

include: a) design guidelines (e.g. materials, conceptual designs, etc.) for

typical projects that are consistent with Management Plan scenic resources

provisions and b) an interdisciplinary, interagency project planning and

development process."

Id. at GMA Policies 2 .

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23. The

commission also relies on Management Plan, Part I, ch 1 (Scenic

Resources), GMA Provisions, Landscape Settings, GMA Policies 5. However, that

policy pertains to recreational usage and, as such, does not appear to

be relevant to the issue of the management plan's compliance with the

requirement that residential, commercial, and mineral resource

development take place without adversely affecting scenic resources. 16 USC §§

544d(d)(7), (8), and (9).

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24. Before

the Court of Appeals, petitioners also argued that the commission's staff had mis interpreted

the policy in a way that violated the Act, i.e. , as precluding any

denial of a proposed use based on landscape settings and key viewing areas

guidelines, even when the applicant refuses to take available steps to achieve

compliance with those guidelines. The Court of Appeals concluded that, insofar

as that argument pertained to a possible interpretation of the Act by

the Commission, it was not ripe for review. Friends of Columbia Gorge ,

215 Or App at 576 . We agree and therefore confine our discussion to

petitioners' alternative argument -- that the policy can only be read in

a way that violates the Act.

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25. Notable

in that regard is the fact that the management plan places no limitations on

the conditions that counties may impose on proposed developments to ensure that

they meet the primary scenic protection requirement of visual subordination to

their setting. See Management Plan, Part I, ch 1 (Scenic

Resources), GMA Provisions, Key Viewing Areas, GMA Guideline 4(B)

("Conditions may be applied to various elements of proposed developments

to ensure they are visually subordinate to their setting as seen from key

viewing areas, including, but not limited to [siting, retention of

existing vegetation, etc.]").

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26. 16

USC § 544(l) defines "open spaces" as "unimproved lands not

designated as agricultural or forest lands * * * and designated as open space

pursuant to section 544d of this title. Open spaces include[, among other

things, fish and wildlife habitat, ecologically significant natural areas,

water areas and wetlands, etc.]."

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27. See

the list of standards for the management plan set out at 16 USC § 544d(d).

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28. We

focus here on the requirements that the management plan contain provisions

precluding adverse effects to natural resources. 16 USC §§ 544d(d)(7), (8) and

(9). As noted above, petitioners also rely on 16 USC § 544a(1), which states

that one of the purposes of the Act is "to establish a national scenic

area to protect and provide for the enhancement of the * * * natural resources

of the Columbia River Gorge." However, given that petitioners' claim of

error focuses on supposed omissions from the management plan, the cited

statement of purpose would appear to be irrelevant, because it does not purport

to control the contents of the management plan.

Petitioners also rely on the

Act's requirements that the commission complete a "resource

inventory" documenting "natural features and limitations" and

"natural resources" in the scenic area, and that it develop land use

designations that are based, in part, on the results of those inventories. 16

USC § 544a(1)(A); 16 USC § 544d(b)(1). However, petitioners' citation to

those provisions does not appear to add anything to their argument. The

commission has inventoried "geological features" including,

apparently, "hazards," see Management Plan,

Introduction, Table 1, "Resource Inventories," and it also appears to

have required use of information obtained in that inventory in making land use

and minimum parcel size designations. See, e.g. , Management Plan,

Part II, ch 4, (Residential Land), GMA Provisions, Land Use Policies 1A

("Minimum parcel sizes for land divisions shall be established, based

upon[, among other things,] [a]voidance of hazards, including, but not limited

to steep slopes, fire danger, and groundwater pollution."); Management Plan,

Part I, ch 4 (Recreation Resources), GMA Provisions, Recreation Intensity

Classes, GMA Policies 4 ("Land slope, road access, the presence of

geologic or other hazards and the presence of significant or sensitive resources

shall be primary considerations in determining the suitability of lands for

recreation."); Management Plan, Part II, ch 3 (Open Spaces), GMA

Provisions, GMA Guidelines, Gorge Wall and Canyonlands (reflecting fact that

open space designation may be based on presence of gorge walls and canyons,

which are obvious geological features of the scenic area).

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29. The

Act does not appear to mean the term in its most traditional sense of naturally

occurring substances that have economic value. Rather, it also includes

the additional sense that the naturally occurring features and materials are

valued for other than economic reasons. Nevertheless, the use of the word

" resource " (instead of, for example, "features")

implies that its object is needed, useful, or valuable. See Webster's

Third New Int'l Dictionary 1934 (unabridged ed 2002) (defining

"resource" as "a new or a reserve source of supply or support: a

fresh or additional stock available at need; something in reserve or ready if

needed * * *. [R]esource may refer to any asset or means benefitting or

assisting one").

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30. See

discussion of Chevron doctrine above, 346 Or at ___ (slip op at 11-21).

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31. "Natural

areas" are botanically significant sites identified by the Oregon and

Washington Natural Heritage Programs under a contract with the commission. Management

Plan, Part I, ch 3 (Natural Resources), Inventories and Key Laws and

Programs, Natural Areas.

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32. 346

Or at ___ (slip op at 35-36).

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33. The

Act itself does not define the term "industrial development," as it

is used in 16 USC § 544d(d)(6).

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34. The

Act designates 13 cities and towns within the scenic area as "urban

areas" and, by reference to a specified map, describes the boundaries of

those urban areas. 16 USC § 544b(e).

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35. In

the Court of Appeals, petitioners also argued that the Commercial Event

provisions violated 16 USC §§ 544d(d)(1) and (2), which require the commission

to include provision in the management plan to, respectively, "protect and

enhance agricultural lands for agricultural uses" and "protect and

enhance forest lands for forest uses." Petitioners do not appear to be

pursuing that argument before this court.

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