1164 or. 213 pacific reporter, 3d series on review. 679 ......1164 or. 213 pacific reporter, 3d...

1164 Or. 213 PACIFIC REPORTER, 3d SERIES

346 Or. 366

FRIENDS OF THE COLUMBIA GORGE,INC., Columbia Riverkeeper, ColumbiaGorge Hotel Co., 1000 Friends of Ore-gon, Claudia Curran, Eric Lichtenthal-er, Jack Mills, Kate Mills, Phil Pizanelli,Dixie Stevens, Brian Winter, and Cyn-thia Winter, Petitioners on Review,

v.

COLUMBIA RIVER GORGECOMMISSION, Respondent

on Review.

(CA A125031; SC S055722).

Supreme Court of Oregon,En Banc.

Argued and submitted Oct. 29, 2008.

Decided July 16, 2009.

Background: Individuals, businesses andconservation organizations with connec-tions to river gorge sought judicial reviewof the Columbia River Gorge Commission’srevision of its management plan for a na-tional scenic area, which they opposed. TheCourt of Appeals, 215 Or.App. 557, 171P.3d 942, remanded management plan tothe Commission for reconsideration of oneminor issue, but otherwise affirmed it, andopponents of plan appealed.

Holdings: The Supreme Court, Gillette,J., held that:

(1) opponents needed to show plan depart-ed from or contravened legal standardexpressed or implied in Columbia Riv-er Gorge National Scenic Area Act;

(2) Commission was entitled to deferencein its interpretation of Act in creatingmanagement plan for scenic area;

(3) plan complied with Act’s mandate toprotect scenic resources from cumula-tive adverse effects;

(4) plan did not allow development whichadversely affected scenic resources inmanner inconsistent with Act;

(5) plan violated Act’s mandate that devel-opment outside of urban areas not ad-versely affect natural resources;

(6) plan did not violate Act by allowinglivestock grazing operations in most ofscenic area; and

(7) Commission would be required on re-mand to state which of two definitionsof ‘‘natural resources’’ it relied on innot addressing geological resources.

Affirmed in part, reversed in part, and re-manded to Columbia River Gorge Commis-sion.

1. Environmental Law O679To succeed on a facial challenge to the

lawfulness of a river gorge commission’s revi-sion of its management plan for a nationalscenic area, alleging revised plan violatedColumbia River Gorge National Scenic AreaAct, plan opponents needed only to show thatchallenged policies and guidelines departedfrom or contravened a legal standard ex-pressed or implied in Act, and were notrequired to demonstrate plan could not beapplied consistently with the law under anycircumstance, with the remedy of remand toagency if court found action outside agency’sdelegated discretion or in violation of a con-stitutional or statutory provision; plan wasadopted and revised by the commissionthrough a process similar to rulemaking pro-cess of Administrative Procedure Act (APA)and was not to be reviewed in the manner ofcontested cases. Columbia River Gorge Na-tional Scenic Area Act, §§ 2–18, 16 U.S.C.A.§§ 544–544p; West’s Or.Rev. Stat. Ann.§§ 183.310–183.750, 196.115.

2. Statutes O219(6.1)Columbia River Gorge Commission was

entitled to deference, in its interpretation ofthe Columbia River Gorge National ScenicArea Act in creating its management plan fora national scenic area, to the extent that planpurported to carry out purposes of Act in away that included resolving ambiguities orfilling gaps in that federal Act, althoughCommission was not, strictly speaking, a fed-eral agency charged by Congress with imple-menting a federal law but, instead, an inter-state agency created by federal law; Actclearly contained gaps Commission wascharged to fill, indeed, Congress directed

1165Or.FRIENDS OF COLUM. GORGE v. COL. RIVER GORGECite as 213 P.3d 1164 (Or. 2009)

Commission to ‘‘adopt a management planfor the scenic area’’ consistent with certainspecified statutory standards, which was justwhat it did, by focusing on nature of Con-gress’s delegation of authority to it, ratherthan its federal status. Columbia RiverGorge National Scenic Area Act, § 5(a)(1)(A),16 U.S.C.A. § 544c(a)(1)(A).

3. Environmental Law O44Columbia River Gorge Commission’s

management plan for a national scenic areacomplied with the Columbia River GorgeNational Scenic Area Act’s mandate to pro-tect scenic resources in ‘‘key viewing areas’’from cumulative adverse effects of commer-cial, residential, and mineral resource devel-opment occurring outside of urban areas,although plan employed a case-by-case ap-proach to cumulative impacts for the re-sponsible agencies, the counties, rather thansetting forth more strict guidelines andstandards; plan did require agencies tomake impact determination each time pre-sented with development application, and toprohibit development that would adverselyaffect scenic resources, with guidelines thateach new development be ‘‘visually subor-dinate’’ to ‘‘landscape setting’’ and expresslyproviding determination of visual subordi-nance must include assessment of cumula-tive effects. Columbia River Gorge Nation-al Scenic Area Act, § 6(d)(7, 8, 9), 16U.S.C.A. § 544d(d)(7, 8, 9).

4. Environmental Law O44Columbia River Gorge Commission’s

management plan for a national scenic areawas not unlawfully inconsistent with the Co-lumbia River Gorge National Scenic Area Actrequirement that development take placewithout adversely affecting scenic resources,insofar as plan provided that ‘‘nothing in thekey viewing areas or landscape settingsguidelinesTTTshall be used as grounds todeny proposed usesTTTHowever, the guide-lines may affect the siting, location, size, andother design featuresTTT, and compliancewith them is mandatory.’’; plan required de-veloper to accept any conditions, even draco-nian ones, necessary to ensure developmentnot affect scenic resources, and if applicantcould not alter proposal to satisfy conditionsrequired by the second sentence, permission

had to be denied. Columbia River GorgeNational Scenic Area Act, § 6(d)(7, 8), 16U.S.C.A. § 544d(d)(7, 8).

5. Environmental Law O44

Columbia River Gorge Commission’smanagement plan for a national scenic areaviolated the Columbia River Gorge NationalScenic Area Act’s mandate that commercial,residential, and mineral resource develop-ment occurring outside of urban areas ‘‘takeplace without adversely affecting theTTTnatu-ral resources of the scenic area’’; plan guide-lines’ broad ‘‘landscape’’ approach madesome effort to use land use designations andminimum parcel sizes to eliminate potentialfor adverse cumulative effects, however,those efforts were incomplete for agriculturaland forest land and much residential land,for which there was no provision that evenremotely demonstrated that landscape ap-proach would avoid or eliminate adverse cu-mulative effects which Act prohibited. Co-lumbia River Gorge National Scenic AreaAct, § 2(a), 16 U.S.C.A. § 544(a).


Columbia River Gorge Commission’smanagement plan for a national scenic areadid not violate Columbia River Gorge Nation-al Scenic Area Act by allowing livestock graz-ing operations in most of scenic area withoutprior review to determine how those opera-tions would affect natural resources; whileone of Act’s stated purposes was ‘‘to establisha national scenic area to protect and providefor the enhancement of the scenic, cultural,recreational, and natural resources,’’ Act alsoprotected economy, clearly set high value onagricultural uses, and did not require plan toprotect all scenic areas’ natural resourcesfrom adverse effects caused by agriculturaluses. Columbia River Gorge National ScenicArea Act, §§ 2(l), 6(b)(2), (d)(1, 3, 7, 8), 16U.S.C.A. §§ 544(l), 544d(b)(2), (d)(1, 3, 7, 8).


Columbia River Gorge Commissionwould be required on remand to addresswhich of two different definitions, in its man-agement plan for a national scenic area, of‘‘natural resources,’’ it had relied on, andwhich the Columbia River Gorge National


Scenic Area Act required be not adverselyaffected by development, when Commissionmade its plan without requiring avoidance ofdevelopment within geological hazard areas,choosing either plan glossary definition as‘‘naturally occurring features including land,’’or narrower plan language of ‘‘wetlands,streams, ponds and lakes, riparian areas,wildlife and wildlife habitat, rare plants, andnatural areas’’ which clearly did not encom-pass geological resources and hazards; if geo-logical resources were natural resources,then plan had to preclude adverse effects tothem, whether or not its provisions specifical-ly identified ‘‘geological resources’’ as theirobject. Columbia River Gorge National Sce-nic Area Act, §§ 3(1), 6(a)(1)(A), (c)(1), (d),(d)(7, 8), 16 U.S.C.A. §§ 544a(1),544d(a)(1)(A), (c)(1), (d), (d)(7, 8).


Columbia River Gorge Commission’smanagement plan for a national scenic areafailed to protect cultural resources from cu-mulative adverse effects of development, asmandated by Columbia River Gorge NationalScenic Area Act in requirement that develop-ment take place without causing adverse cu-mulative effects to commercial, residential,and mineral resources; provision that landsmay be suitable for commercial recreation if‘‘[p]otential development on the site wouldnot adversely affect significant cultural re-sources’’, was insufficient, as was require-ment that ‘‘reconnaissance surveys’’ be per-formed for any proposed use that involvedmore than minimal ground disturbance, todetermine whether cultural resources mightbe affected, since such surveys, though auseful tool to identify such resources, didnothing to require that they not be adverselyaffected, individually or cumulatively, bycommercial, residential, or mineral resourcedevelopment. Columbia River Gorge Na-tional Scenic Area Act, § 6(d)(7, 8, 9), 16U.S.C.A. § 544d(d)(7, 8, 9).


Small scale fish processing operationswere not ‘‘industrial uses’’ banned by Colum-bia River Gorge National Scenic Area Act,and could thus be permitted by ColumbiaRiver Gorge Commission’s management plan

for a national scenic area; plan guidelines hadsufficient restrictions, by limitations and con-ditions which allowed processing only on par-cels contiguous with river with a lawfuldwelling, a permanent resident of dwellinghad to participate, it could employ only resi-dents of dwelling and up to three outsideemployees, work had to take place in dwell-ing, not exceed 25 percent of its area or anaccessory building under 2,500 square feet,and operation was to process fish caught onlyby dwelling residents and the outside em-ployees. Columbia River Gorge NationalScenic Area Act, § 6(d), 16 U.S.C.A.§ 544d(d).

10. Administrative Law and ProcedureO413

Although agencies are bound by theirown rules, courts afford particular deferenceto agencies’ interpretations of those rules.

11. Administrative Law and ProcedureO413

Courts defer to an agency’s interpreta-tion of its own rule if the interpretation isplausible and not inconsistent with the rule,the rule’s context, or any other source of law.


Zoning and Planning O13.5

Provision in Columbia River Gorge Com-mission’s management plan for national sce-nic area which allowed weddings, receptions,parties and other small-scale gatherings inci-dental to primary use on parcel zoned agri-cultural, forest, public recreation, or residen-tial, did not violate provisions in ColumbiaRiver Gorge National Scenic Area Act thatCommission was to ‘‘designate areas in thescenic areaTTTfor commercial development:Provided, That such designation shall encour-age, but not require, commercial develop-ment to take place in urban areas’’; provisionsaid nothing about confining ancillary com-mercial uses outside of urban areas to desig-nated commercial lands. Columbia RiverGorge National Scenic Area Act, § 6(b)(5), 16U.S.C.A. § 544d(b)(5).

On review from the Court of Appeals.*


Gary K. Kahn, of Reeves, Kahn & Hennes-sy, Portland, argued the cause and filed thebriefs for petitioners on review Friends ofthe 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 briefswas Mary Kyle McCurdy, Portland, for peti-tioner on review 1000 Friends of Oregon.

Jeffrey B. Litwak, White Salmon, Wash-ington, argued the cause and filed the brieffor respondent on review.

James E. Mountain, Jr., of Harrang LongGary Rudnick P. C., Portland, filed the brieffor amicus curiae Pacific States Marine Fish-eries Commission. With him on the briefwas Jona J. Maukonen, Portland. Also onthe brief was John Shurts, Portland, for ami-cus curiae NW Power and ConservationCouncil.

Erin C. Lagesen, Assistant Attorney Gen-eral, Salem, filed the brief for amicus curiaeState of Oregon. With her on the brief wereHardy Myers, Attorney General, and MaryH. Williams, Solicitor General.

GILLETTE, J.

S 369Petitioners, who are individuals, busi-nesses and conservation organizations withconnections to the Columbia River Gorge,sought judicial review by the Court of Ap-peals of the Columbia River Gorge Commis-sion’s (commission) 2004 revision of its man-agement plan for the Columbia River GorgeNational Scenic Area. Before that court, peti-tioners argued, in numerous assignments andsubassignments of error, that various aspectsof the 2004 revision violated the ColumbiaRiver Gorge National Scenic Area Act, 16U.S.C. §§ 544–544p. The Court of Appealsrejected all but one of petitioners’ subassign-ments of error. Friends of Columbia Gorgev. Columbia River Gorge, 215 Or.App. 557,171 P.3d 942 (2007). We allowed petitioners’petition for review, which challenges the vari-ous standards of review that the Court of

Appeals employed in considering petitioners’claims, as well as a number of the Court ofAppeals’ substantive holdings. For the rea-sons that follow, we affirm the Court ofAppeals decision in part, reverse it in part,and remand the case to the commission forfurther proceedings.

Because a general understanding of theAct and its relationship to the commissionand the management plan is necessary to anunderstanding of the issues in this case, weprovide the following background. In 1986,Congress passed the Columbia River GorgeNational Scenic Area Act, Pub. L. 99–663,§§ 2–18, 100 Stat. 4274 (1986), now codifiedat 16 U.S.C. §§ 544–544p. The Act statestwo purposes: (1) to create a national scenicarea in Washington and Oregon ‘‘to protectand provide for the enhancement of the sce-nic, cultural, recreational, and natural re-sources of the Columbia River Gorge’’; and(2) to protect and support the economy of thearea ‘‘by encouraging growth to occur inexisting urban areas and by allowing futureeconomic development in a manner that isconsistent with’’ the first purpose. 16 U.S.C.§ 544a. The Act creates the Columbia RiverGorge National Scenic Area, § 544b, a desig-nated area of land that lies adjacent to theColumbia River in Oregon and Washington.It also authorizes those two states to enterinto an interstate compact and to create aregional commission, which, in cooperationand consultation with the United States Sec-retary of Agriculture (the secretary), ischarged with developing, implementing,S 370and administering a management plan forthe scenic area. 16 U.S.C. §§ 544c, 544d.

The Act itself establishes a framework anda process for developing the contemplatedmanagement plan. First, it divides the landin the scenic area into three categories: (1)‘‘Special Management Areas’’ (SMAs), overwhich the Secretary of Agriculture is to haveprimary responsibility; (2) ‘‘Urban Areas,’’which the Act largely exempts from the com-mission’s control; and (3) all remaining ar-eas, which would come to be known as the‘‘General Management Area’’ (GMA). 16U.S.C. § 544b(b), (e). Next, the Act directsthe commission to carry out various studies

* Judicial review of order of the Columbia RiverGorge Commission. 215 Or.App. 557, 171 P.3d

942 (2007).


and inventories of the features, uses, andresources of all land within the scenic area.16 U.S.C. § 544d(a). It then requires thecommission to use the resulting studies andinventories to designate areas within the sce-nic area that are suitable for specified uses—agriculture, forest production, open space,and commercial and residential development.16 U.S.C. § 544d(b). Finally, it instructs thecommission to produce a land use manage-ment plan that incorporates those land usedesignations, is consistent with certain speci-fied standards (set out below), and providesspecific guidelines for the adoption of landuse ordinances within the scenic area.1 16U.S.C. § 544d(c).

The aforementioned ‘‘standards’’ essential-ly amount to a requirement that the manage-ment plan include certain protective provi-sions. In particular,

‘‘[t]he management plan and all land useordinances and interim guidelines adoptedpursuant to [the Act] shall include provi-sions to:

‘‘(1) protect and enhance agriculturallands for agricultural uses and to allow,but not require, conversion of agriculturallands to open space, recreation develop-ment or forest lands;

‘‘(2) protect and enhance forest lands forforest uses and to allow, but not require,conversion of forest lands to agriculturallands, recreation development or openspaces;

S 371‘‘(3) protect and enhance open spaces;‘‘(4) protect and enhance public and pri-

vate recreation resources and educationaland interpretive facilities and opportuni-ties, in accordance with the recreation as-sessment adopted pursuant to subsection(a) of this section;

‘‘(5) prohibit major development actionsin special management areas, except forpartitions or short plats which the Secre-tary determines are desirable to facilitateland acquisitions pursuant to [this Act];

‘‘(6) prohibit industrial development inthe scenic area outside urban areas;

‘‘(7) require that commercial develop-ment outside urban areas take place with-

out adversely affecting the scenic, cultural,recreation, or natural resources of the sce-nic area;

‘‘(8) require that residential develop-ment outside urban areas take place with-out adversely affecting the scenic, cultural,recreation, or natural resources of the sce-nic area; and

‘‘(9) require that exploration, develop-ment and production of mineral resources,and the reclamation of lands thereafter,take place without adversely affecting thescenic, cultural, recreation, or natural re-sources of the scenic area.’’

Id. at § 544d(d).The commission is required to consult with

federal, state, and local governments in de-veloping the management plan and must con-duct public hearings and solicit public com-ment before finally adopting it. Id. at§ 544d(e). Once the commission adopts amanagement plan, it must submit it to thesecretary for review and concurrence. Id. at§ 544d(f). Once that concurrence has beenobtained (or the commission has overriddenany objections by the secretary by a two-thirds vote), each of the six counties withinthe scenic area (three in Oregon, three inWashington) must adopt land use ordinancesthat are consistent with the managementplan. Id. at § 544e.

S 372The management plan is subject to peri-odic review and revision. Under section544d(g), the commission is required to reviewthe management plan at least every tenyears ‘‘to determine whether it should berevised.’’ As with the original managementplan, it is required to submit ‘‘any revisedmanagement plan to the Secretary for reviewand concurrence.’’ Id.

Pursuant to the Act, Oregon and Washing-ton adopted the Columbia River Gorge Com-pact, which established the Columbia RiverGorge Commission and provided for fundingof that body. The legislatures of Oregon andWashington ratified the compact shortlythereafter, and the statutes reflecting thatratification appear, respectively, at ORS196.150 and RCW 43.97.015. Commissionmembers were appointed and the commission

1. The secretary is charged with developingguidelines and designations, using a similar pro-

cess, for the SMA. 16 U.S.C. § 544f.


commenced work.2 In 1991, the commissioncompleted a management plan and the secre-tary concurred in that plan in 1992. There-after, the management plan controlled landmanagement decisions within the scenic area(except in the Urban Areas).3

In 1997, the commission began the processof reviewing the original management plan‘‘to determine whether it should be revised,’’as the Act requires. 16 U.S.C. § 544d(g).In the initial stage of that review, which tooksome time, the commission created a list oftopics within the management plan that thecommission believed required revision or, atleast, further consideration. However, thecommission thereafter lost much of the fund-ing that it had depended on to carry out itsreview and, therefore, decided that it shouldconfine its review to a smaller, select groupof issues. Over the S 373next few years, thecommission worked on revising the manage-ment plan with respect to those selectedissues and, in April 2004, it adopted a revisedmanagement plan 4 that incorporated the re-visions.5

Following the management plan’s adop-tion, petitioners timely filed a petition for

judicial review of the plan in the OregonCourt of Appeals, as authorized by ORS196.115.6 They argued that various aspectsof the management plan violated the require-ments of the Act and also argued that thecommission’s review process was incompletebecause the Act required it to review theentire management plan.

As noted, the Court of Appeals remandedthe management plan to the commission forreconsideration of one minor issue, but other-wise affirmed it. Petitioners sought reviewby this court, challenging the Court of Ap-peals’ resolution of 11 separate issues. Weconsider those challenges in turn, setting outadditional facts that are pertinent to theissue under consideration as to each.

S 3741. Did the Court of Appeals state andapply an erroneous standard of reviewinsofar as it held that, to succeed on aclaim that the plan violates the Act, peti-tioners must demonstrate that the plancannot be applied consistently with theAct under any circumstances?

[1] Petitioners’ first three challengespertain to standards of review that the Court

2. The commission consists of 13 members—onefrom each of the six counties with land that iswithin the scenic area’s boundaries, who areappointed by the governing bodies of their re-spective counties; three from Oregon, who areappointed by the Governor of Oregon; threefrom Washington, who are appointed by the Gov-ernor of Washington; and one ex officio, nonvot-ing member, who is an employee of the UnitedStates Forest Service and who is appointed bythe Secretary of Agriculture. 16 U.S.C.§ 544c(a)(1)(C).

3. Much of the day-to-day implementation of themanagement plan occurs at the county level.The Act therefore requires counties within thescenic area to adopt land use ordinances that areconsistent with the management plan. 16 U.S.C.§ 544e(b), (c).

4. The revised management plan and the ‘‘origi-nal’’ management plan are distinct plans for thepurposes of this opinion. However, maintainingthat distinction can be confusing and, in anyevent, is unnecessary. In this opinion, becausethe object of our review is the revised manage-ment plan adopted by the commission in 2004,we refer to that version (and not to the original1992 plan) as ‘‘the management plan’’ or ‘‘theplan.’’

The reader also should be aware that, when werefer to the ‘‘management plan’’ in this opinion,

we are not referring to a paper document, but tothe entire body of law that comprised the revisedmanagement plan in 2004. As far as we can tell,that body of law was not published in a singlepaper document. In 2004, the commission didpublish a compilation of the chapters of themanagement plan that it had revised, but thatdocument did not include the many chapters ofthe management plan that had not been revised,but remained in effect. The management planalso has been amended, as provided in 16 U.S.C.§ 544d(h), on many occasions since 2004, and anup-to-date version, which includes all revisionsand amendments that currently are in effect, isavailable online at http://www.gorgecommission.org. In this opinion, for obvious reasons, whenwe cite provisions in the management plan, wemake no attempt to refer to a particular docu-ment, online or on paper, or to page numberstherein. Instead, we simply refer to part, chap-ter, and provision numbers.

5. The secretary concurred in the revised manage-ment plan in August 2004.

6. The Act provides that any person adverselyaffected by a final action of the commission relat-ing to the implementation of the Act may obtainjudicial review in the state courts of Oregon andWashington. 16 U.S.C. § 544m(b)(4), (6)(C).ORS 196.115(2)(a) provides that, in Oregon, suchreview shall be in the Court of Appeals.


of Appeals applied to petitioners’ claims thatvarious aspects of the management plan vio-lated the Act. First, petitioners argue thatthe Court of Appeals erred when it heldthat, to prevail on any of its challenges topolicies and guidelines in the managementplan, petitioners ‘‘must demonstrate that theplan cannot be applied consistently with thelaw under any circumstance.’’ Friends ofColumbia Gorge, 215 Or.App. at 568, 171P.3d 942. Petitioners contend that, to thecontrary, they need only show that the chal-lenged policies and guidelines depart from orcontravene a legal standard expressed or im-plied in the Act.

Notably, the Act itself provides no stan-dards for reviewing actions and orders of thecommission, but appears to leave such detailsto the courts that are authorized to performsuch reviews. Federal courts generally ap-ply the standards of review provided in thefederal Administrative Procedures Act(APA), 5 U.S.C. §§ 500–706, see, e.g.,Friends of Columbia Gorge, Inc. v. Schafer,No CV 04–1423–MO, 624 F.Supp.2d 1253,1263, 2008 WL 5070962 at * 4 (D. Or. Nov.24, 2008) (applying 5 U.S.C. § 706(2)(A) ),and Washington courts apply the standardsof review set out in the Washington Adminis-trative Procedures Act, RCW § 34.05, andcommon law. See, e.g., Friends of ColumbiaGorge. Inc. v. Columbia River Gorge Com’n,126 Wash.App. 363, 369–70, 108 P.3d 134(2005) (demonstrating principle). In Oregon,however, the legislature has enacted a stat-ute, ORS 196.115, that governs judicial re-view of commission actions in Oregon courts.It provides that review of final actions andorders of the commission shall be conducted,initially, in the Court of Appeals, and that thecourt’s review ‘‘shall be in accordance with’’various provisions of the Oregon Administra-tive Procedures Act (the Oregon APA), ORS183.310 to 183.750, pertaining to judicial re-view of orders in contested cases. ORS196.115(2), (3)(a). Moreover, and in additionto referencing those Oregon APA contestedcase provisions, the statute somewhat redun-dantly spells out S 375a standard of review thatis almost identical to the one that Oregoncourts are required to apply under the Ore-gon APA to orders in contested cases:

‘‘(c) The court may affirm, reverse orremand the order. If the court finds thatthe agency has erroneously interpreted aprovision of law and that a correct inter-pretation compels a particular action, thecourt shall:

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

‘‘(B) Remand the case to the agency forfurther action under a correct interpreta-tion of the provision of law.

‘‘(d) The court shall remand the order tothe agency if the court finds the agency’sexercise of discretion to be:

‘‘(A) Outside the range of discretion del-egated to the agency by law;

‘‘(B) Inconsistent with an agency rule,an officially stated agency position or aprior agency practice, unless the inconsis-tency is explained by the agency; or

‘‘(C) Otherwise in violation of a constitu-tional or statutory provision.

‘‘(e) The court shall set aside or remandthe order if the court finds that the orderis not supported by substantial evidence inthe whole record.’’

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

In considering the standard of review issuein the present case, the Court of Appealsacknowledged the foregoing statutory stan-dard, but noted that the standard is ‘‘lessthan a perfect fit’’ with petitioners’ chal-lenges, because it calls for application of thekind of review used in contested cases, whilethe commission’s acts under review are es-sentially legislative in nature. Friends ofColumbia Gorge, 215 Or.App. at 568, 171P.3d 942. The court opined that petitioners’challenges amounted to a facial challenge tothe lawfulness of the management plan andconcluded that, to prevail on such a claim,petitioners ‘‘must demonstrate that the plancannot be applied consistently with the lawunder any circumstance.’’ Id. In support ofthat standard of review, the court cited Mac-Pherson v. DAS, 340 Or. 117, 138–39, 130P.3d 308 (2006) and United States v. Salerno,481 U.S. 739, 745, 107 S.Ct. 2095, S 37695L.Ed.2d 697 (1987), as cases setting out thetest for a challenge to the facial legality of anagency created rule.


However, as petitioners correctly observe,neither MacPherson nor Salerno is authorityfor application of the Court of Appeals’ ‘‘not-lawful-under-any-circumstances’’ standard.Both cases involved a claim that a statutewas inconsistent with a constitutional provi-sion—in particular, the Due Process Clauseof the Fourteenth Amendment to the UnitedStates Constitution. Although it is true thatsome authority in the federal courts supportsapplying that standard when reviewing anagency’s regulations for inconsistency withits authorizing statute,7 this court, so far aswe can determine, has never applied thatstandard to anything other than a constitu-tional challenge to a statute.

Neither do we think that this is a case thatjustifies applying that standard of review, soforeign to the administrative law of thisstate, to what at bottom simply are chal-lenges to the validity of an administrativerule. In that regard, we observe that themanagement plan, both in its original and itsrevised form, is much like a ‘‘rule,’’ as thatterm is defined in the Oregon APA, i.e., it is‘‘any agency directive, standard, regulationor statement of general applicability that im-plements, interprets or prescribes law or pol-icy, or describes the procedure or practicerequirements of any agency.’’ ORS183.310(9). Moreover, the plan was adoptedand revised by the commission through aprocess similar to the rulemaking processprescribed in the Oregon APA at ORS183.335. Although the commission is not astate agency that is directly subject to theOregon APA, it is clear that petitioners’ chal-lenges to the management plan are analo-gous to typical ‘‘facial’’ challenges to the va-lidity of a rule under the Oregon APA. In ourview, judicial review should proceed accord-ingly.

Petitioners urge this court to conduct itsreview using the methodology of PlannedParenthood Assn. v. Dept. of Human Res.,297 Or. 562, 687 P.2d 785 (1984). In PlannedParenthood, this court set out the followingstandard for S 377reviewing similar ‘‘facial’’challenges to the validity of an administrativerule:

‘‘In the proper sequence of analyzing thelegality of action taken by officials underdelegated authority, the first question iswhether the action fell within the reach oftheir authority, the question which in thecase of courts is described as ‘jurisdiction.’If that is not an issue * * * the question iswhether the action was taken by proce-dures prescribed by statute or regulation.Assuming that proper procedures were fol-lowed, the next question is whether thesubstance of the action, though within thescope of the agency’s or official’s generalauthority, departed from a legal standardexpressed or implied in the particular lawbeing administered, or contravened someother applicable statute.’’

Id. at 565, 687 P.2d 785 (emphasis added).We agree with petitioners that the quotedPlanned Parenthood standard is consistentwith the legislatively prescribed statutorystandard at ORS 196.115(3)(c) to (e) and,particularly, with subparagraphs ORS196.115(3)(d)(A) and (C), which provide forremand to the agency if the court finds thechallenged action to be ‘‘outside the range ofdiscretion delegated to the agency by law’’ or‘‘[o]therwise in violation of a constitutional orstatutory provision.’’ That standard, and notthe different standard of review that theCourt of Appeals utilized, is the appropriateone for petitioners’ facial challenges to thelawfulness of the management plan.

2. Did the Court of Appeals err in hold-ing that, when commission actions arereviewed in Oregon courts, the defer-ential standard of review set out inChevron USA v. Natural Res. Def.Council, 467 U.S. 837, 104 S.Ct. 2778, 81L.Ed.2d 694 (1984) applies?

As noted, petitioners contend that themanagement plan is inconsistent, in variousrespects, with the requirements of the Act.To assess the validity of those claims, it isnecessary to determine what the Act re-quires. Consequently, our review of petition-er’s claims generally will involve some inter-pretation of the Act.

7. See Sierra Club v. Bosworth, 510 F.3d 1016,1023–24 (9th Cir.2007) (declining to apply the

Salerno standard and discussing its inconsistentuse in the federal courts).


In interpreting the Act, we follow themethodology that federal courts have pre-scribed for interpreting federal S 378statutes,just as we would do in interpreting any otherfederal statute. Corp. of Presiding Bishop v.City of West Linn, 338 Or. 453, 463, 111 P.3d1123 (2005). In general, that means examin-ing the text, context, and legislative historyof the statute. Id. However, there is anadditional methodological wrinkle when, as inthe present case, one of the parties beforethe court is the agency that has beencharged with implementing the statute thatis to be interpreted. A long line of federalcases, beginning with Chevron, U.S.A. v.Natural Res. Def. Council, 467 U.S. 837,842–44, 104 S.Ct. 2778, 81 L.Ed.2d 694(1984), holds that, when a federal agency hasbeen charged by Congress with implement-ing a federal statute, courts should defer tothat agency’s interpretation of the statute,treating that interpretation as controlling aslong as it is reasonable. See, e.g., Nat’l Ass’nof Home Builders v. Defenders of Wildlife,551 U.S. 644, 665, 127 S.Ct. 2518, 2534, 168L.Ed.2d 467 (2007); Barnhart v. Walton, 535U.S. 212, 215, 122 S.Ct. 1265, 152 L.Ed.2d330 (2002); Rust v. Sullivan, 500 U.S. 173,184, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)(each stating same rule). Although that sortof deference is foreign to the administrativelaw of this state,8 we are bound to apply it inour interpretation of federal statutes if thefederal interpretive methodology so de-mands.

[2] The remaining methodological ques-tion in this case, however, is whether thefederal methodology would require deferenceby a federal court to the commission’s inter-pretation of the Act, given the fact, amongothers, that the commission is not, strictlyspeaking, a federal agency charged by Con-gress with implementing a federal law. The

Court of Appeals concluded that, althoughthe commission is not a federal agency, Chev-ron deference to its interpretations of theAct is appropriate because the commission is‘‘a creation of federal law,’’ it is authorized toimplement federal law, and ‘‘the usual ratio-nales for deference to agency construction’’therefore should apply to its interpretationsof the Act. Friends of Columbia Gorge, 215Or.App. at 570, 171 P.3d 942.9

S 379Petitioners argue, however, that thecommission is not a creation of federal lawbut, instead, is the creation of an interstatecompact that Congress authorized but didnot require Oregon and Washington to adopt.From that premise, petitioners argue thatthe commission is not the recipient of dele-gated authority from Congress but, instead,derives its authority from state law, insofaras Washington and Oregon chose to createthe commission and to assign to it its presentpowers. Finally, petitioners observe that theAct expressly states that the commission‘‘shall not be considered an agency or instru-mentality of the United States for the pur-pose of any federal law,’’ 16 U.S.C.§ 544c(a)(1)(A) (emphasis added), including(they argue) the federal judicially createdlaw relating to deference to agencies’ statuto-ry constructions.

For its part, the commission argues that,even if it is not directly a creature of federallaw, the interstate compact that created it ismore federal in nature than not, insofar as itincorporates federal law (the Act), pertains tosubject matter of national interest, and re-quired Congress’s express consent. Thecommission concludes that Chevron defer-ence therefore is appropriate. The commis-sion also argues that applying Chevron defer-ence in Oregon courts to the commission’sinterpretations of the Act is desirable be-

8. The Chevron doctrine has been widely criti-cized. See, e.g., Laurence H. Tribe, I AmericanConstitutional Law 997–1002 (3d ed.2000) (Chev-ron, in combination with relaxation of nondele-gation doctrine, threatens to ‘‘cede large areas ofthe legal landscape to relatively unaccountablefederal agencies.’’).

9. The court identified, as the ‘‘usual rationales’’for deferring to an agency’s interpretation, theprinciples of ‘‘congressional delegation’’ and‘‘separation of powers’’ and the agency’s superi-

or expertise with respect to the subject matter.The court also concluded that the notice-and-comment procedures required by the Act demon-strated that Congress intended to require defer-ence to the commission’s interpretations.Friends of Columbia Gorge, 215 Or.App. at 570–77, 171 P.3d 942. We need not agree with theCourt of Appeals’ summary of the rationales forthe Chevron doctrine to agree that the doctrineapplies to the present case.


cause it ‘‘brings a degree of consistency anduniformity to the states’ judicial review ofcommission actions involving interpretationof the federal Scenic Area Act that would notoccur if the state courts use their own statelaw.’’ The commission notes, in that regard,that federal and Washington state courtshave applied Chevron to the commission’sinterpretations of the Act. Finally, the com-mission points to what it characterizes as a‘‘solid history’’ in federal courts of applyingChevron deference to interstate compactagencies’ interpretations of their own organicstatutes.10 The commission suggests thatthis court should follow suit.

S 380The commission’s last two points areunpersuasive. First, given that Chevron is amainstay in the federal courts, the fact thatfederal courts have applied Chevron defer-ence to compact agencies’ interpretations offederal statute may simply have been reflex-ive. In the absence of any explicit and au-thoritative holding that all courts should de-fer to compact agencies’ interpretations oftheir (federal) organic statutes, regardless ofdifferences between the particular compactagencies’ powers, the review provisions in thestatutes at issue, and the reviewing courts’ordinary practices, we are not inclined tofollow the cited cases without conducting ourown analysis of the question.

The commission’s argument for applyingChevron as a means of ensuring uniformityin judicial review also is unpersuasive. Al-though we agree with the commission thatvariation in judicial review methodologiescould undermine uniformity of land use stan-dards within the scenic area, such variationappears entirely consistent with, and mayeven be contemplated by, the Act. We note,in that regard, that the Act specifically placesjurisdiction to review appeals taken fromcommission actions in the state courts of

Washington and Oregon, but does not speci-fy any standard of review. One Washingtoncourt has responded to that circumstance byapplying the standards of review set out inits own administrative procedures act when itis called upon to review a commission ac-tion,11 while Oregon courts use a standard ofreview that the legislature specificallyadopted for review of commission actions,now codified at ORS 196.115(3)(c) to (e). Al-though we acknowledge that the interpreta-tion of statutes arguably is a different mat-ter, the fact that the Act by omission createsa situation in which Oregon and Washingtonare free to apply different standards of re-view to commission S 381actions suggests thatuniform treatment may not be the objectivethat Congress sought to achieve under theAct, as the commission suggests.

In the end, we think that the applicabilityof 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 thatquestion, as it turns out, is itself a function ofcongressional intent: The United States Su-preme Court, which first announced theChevron standard, has explained the stan-dard in terms of a congressional intent orexpectation—specifically, a congressional ex-pectation, implied from the agency’s ‘‘generalconferred authority’’ and other circum-stances, that the agency will ‘‘be able tospeak with the force of law when it addressesambiguity in the statute or fills a space in theenacted law.’’ United States v. Mead Corp.,533 U.S. 218, 229, 121 S.Ct. 2164, 150L.Ed.2d 292 (2001); see also Smiley v. Citi-bank (South Dakota), N.A., 517 U.S. 735,740–41, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996)(Court accords deference to agencies underChevron because of a presumption that Con-gress, ‘‘when it left ambiguity in a statute

10. The commission cites, among other cases,People of California v. Tahoe Regional PlanningAgency, 766 F.2d 1308, 1313 (9th Cir.1985) (ap-plying Chevron deference to interstate compactagency); Seattle Master Builders v. Pacific N.W.Elec. Power, 786 F.2d 1359, 1370 (9th Cir.1986)(applying Chevron deference to Pacific NorthwestElectric Power and Conservation Planning Coun-cil (an interstate compact agency) ); and NYState Dairy Foods v. Northeast Dairy Compact, 26F.Supp.2d 249, 260, 265 (D.Mass.1998) (applying

Chevron deference to regional compact agency’sconstruction of its own authorizing statute).

11. See, e.g., Friends of Columbia Gorge v. Colum-bia River, 126 Wash.App. 363, 369–70, 108 P.3d134 (2005) (‘‘The Act gives state courts jurisdic-tion over most disputes * * *. Absent publishedprocedural rules, therefore, we apply the Wash-ington Administrative Procedure Act, chapter34.05 RCW.’’).


[that was] meant for implementation by anagency, understood that the ambiguity wouldbe resolved, first and foremost by the agency[rather than the courts.]’’). According to theCourt, when circumstances suggest that suchan intent or expectation exists,

‘‘a reviewing court has no business reject-ing an agency’s exercise of its generallyconferred authority to resolve a particularstatutory ambiguity simply because theagency’s chosen resolution seems unwise,but is obliged to accept the agency’s posi-tion if Congress has not previously spokento the point at issue and the agency’sinterpretation is reasonable.’’

Mead Corp., 533 U.S. at 229, 121 S.Ct. 2164(citations omitted).

It follows that, to resolve whether the com-mission’s interpretations of the Act are enti-tled to Chevron deference, we must deter-mine whether the commission’s ‘‘generallyconferred authority’’ or other aspects of theAct imply a congressional expectation thatthe commission will ‘‘speak with the force oflaw’’ when it addresses ambiguities and gapsin the S 382statute.12 A strong indicator ofsuch an expectation, according to the cases,is express congressional authorization to en-gage in rulemaking and adjudication withrespect to the matters under review. See,e.g., EEOC v. Arabian American Oil Co., 499U.S. 244, 257, 111 S.Ct. 1227, 113 L.Ed.2d274 (1991) (suggesting that no deference iswarranted when agency is not authorized topromulgate rules). That inference is particu-larly strong when that authorization providesfor formal administrative procedures de-signed to ‘‘foster the fairness and delibera-tion that should underlie a pronouncement ofsuch force.’’ Mead Corp., 533 U.S. at 230,121 S.Ct. 2164.

Applying the foregoing considerations tothe present case, it appears that, to theextent that the management plan purports tocarry out the purposes of the Act in a way

that includes resolving ambiguities in or fill-ing in gaps in the Act, the commission isentitled to Chevron deference. The Actclearly contains gaps that the commission ischarged with filling. Indeed, Congress hasdirected the commission to ‘‘adopt a manage-ment plan for the scenic area,’’ which mustbe based on resource inventories and landuse designations that the Act requires thecommission to develop, which must be ‘‘con-sistent with’’ certain specified statutory stan-dards, 16 U.S.C. § 544d(c)(1), (2), and (3),and which, once adopted, will effectively con-trol land use actions within the scenic area,16 U.S.C. § 544e. That would seem to bethe precise sort of delegation of authoritythat, according to Mead and similar cases,indicates a congressional expectation that thecommission will ‘‘speak with the force of law’’in filling the significant gaps left open by thestatute. Moreover, to the extent that theAct authorizes the commission to develop andadopt a management plan (a documentaryproduct that in every relevant sense is a ruleor a compilation of rules), requires the com-mission to conduct public hearings and solicitpublic comment before adopting a final man-agement plan, 16 U.S.C. § 544d(e), and re-quires the commission to adopt and followother administrative procedures that wouldappear to be S 383designed to foster fairnessand deliberation, 16 U.S.C. § 544c(b),13 thecommission stands well within the main-stream of agencies whose interpretations oftheir organic statutes have been deemedworthy of Chevron deference.

Petitioners argue that Chevron is a federaldoctrine that applies only to agencies andinstrumentalities of the United States, andthat, whatever else it may be, the commissionis not a federal agency. Petitioners note, inthat regard, that the Act expressly providesthat the commission ‘‘shall not be consideredan agency or instrumentality of the UnitedStates for the purpose of any Federal Law.’’

12. Of course, Oregon courts do not operate onthe same set of assumptions about the intentionsof the Oregon legislature. See generally Spring-field Education Assn. v. School Dist., 290 Or.217, 221–30, 621 P.2d 547 (1980) (explaininghow authority to construe statutes is allocatedbetween agencies and courts depending on typeof statutory term that is at issue).

13. Under 16 U.S.C. section 544c(b), the commis-sion must adopt regulations

‘‘relating to administrative procedure, themaking of contracts, conflicts-of-interest, fi-nancial disclosure, open meetings of the Com-mission, advisory committees, and disclosureof information consistent with the more re-strictive statutory provisions of either State.’’


16 U.S.C. § 544c(a)(1)(A). However, none ofthe federal cases that discusses and appliesChevron to agency actions appears to focuson the agency’s status as a federal agency.Although the cases, of necessity, generally dopertain to federal agencies, their focus is onthe nature of Congress’s delegation of au-thority to the agency, rather than the agen-cy’s federal status.

Petitioners also argue that the commissionis not a recipient of a congressional delega-tion of authority but, instead, derives itsauthority from an interstate agreement and,thus, from the two member states. Petition-ers acknowledge that Congress gave consentfor Oregon and Washington to enter into aninterstate compact, but it notes that Con-gress did not require the states to do so.Petitioners contend that, under those circum-stances, Oregon and Washington must bedeemed to have created the commission andto be the source of its authority to developand implement the management plan.

We disagree. The Act reveals a far great-er Congressional role in the creation of thecommission and the development of the man-agement plan than petitioners’ argument ac-knowledges. In addition to memorializingCongress’s consent to an interstate compact,the Act provides for the formation of aninterstate commission to administer thatcompact, describes S 384in relatively fine detailthe structure of that body and how its mem-bers will be appointed, requires the commis-sion to adopt a management plan, describesthe process that the commission must use fordeveloping the management plan, and pro-vides standards to which the resulting man-agement plan must adhere.14 In short, evenif Oregon and Washington are the parties

who enter into the compact, it is a compact ofCongress’s design. Of particular relevancehere, it is Congress—not the states—thatdetermined what powers and responsibilitieswould be delegated to the commission andwhat procedures the commission must followin carrying out its responsibilities.

In the end, we conclude that, in 16 U.S.C.§§ 544–544p, Congress delegated authorityto the commission that, under the federalmethodology that we are bound to apply,implies a congressional expectation that thecommission will ‘‘speak with the force of law’’when it addresses ambiguities and gaps inthe statutory scheme. The commission’s in-terpretations of the Act therefore are enti-tled to the level of deference that the Chev-ron doctrine prescribes. That means that, ifthe Act is ambiguous with respect to somematter, the commission’s construction mustbe upheld, unless it is unreasonable. Chev-ron, 467 U.S. at 842–44, 104 S.Ct. 2778.

3. Should courts defer to the commis-sion’s interpretations of the Act thatare articulated for the first time onappeal?

As petitioners point out, a conclusion thatthe Chevron doctrine applies in this case onjudicial review does not mean that any andevery interpretation of the Act that S 385thecommission might offer to this court is enti-tled to deference. Federal courts do not, forexample, accord Chevron deference to posthoc rationalizations offered by an agency’slawyers, when the agency itself has not artic-ulated a position on the issue. Bowen v.Georgetown University Hospital, 488 U.S.204, 212–13, 109 S.Ct. 468, 102 L.Ed.2d 493(1988).15 Neither shall we. But our accep-

14. The Act also provides, among other things,that the secretary will have authority over certainparts of the scenic area, 16 U.S.C. § 544f, thatthe Oregon Department of Transportation willdevelop a plan for restoring the Old ColumbiaRiver Highway, 16 U.S.C. § 544j, that designatedrivers and streams will be subject to restrictionsset out in section 7(a) of the Wild and ScenicRivers Act, 16 U.S.C. § 1278(a), 16 U.S.C.§ 544k, and that the secretary and commissionwill provide technical assistance to the six coun-ties in the scenic area, 16 U.S.C. § 544l. The Actalso authorizes the appropriation of federal fundsfor acquisition of land and for various specifiedprojects and sets out procedures for enforcing

the provisions of the Act and for bringing actionsagainst the commission, the counties, and thesecretary, 16 U.S.C. §§ 544m, 544n. All of thoseprovisions are part of the interstate compact thatCongress had in mind, and Oregon and Washing-ton had no authority or permission to adopt acompact that did not contain them.

15. See also Investment Co. Institute v. Camp, 401U.S. 617, 626–28, 91 S.Ct. 1091, 28 L.Ed.2d 367(1971) (in determining whether Comptroller ofthe Currency authorization of banks’ creationand operation of investment funds violatedGlass–Steagall Act, Court would not defer to


tance of that distinction in principle does notmean that we agree with petitioners that theCourt of Appeals improperly deferred to var-ious interpretations of the Act that the com-mission articulated in its briefs. That deter-mination must be made on an argument-by-argument (or interpretation-by-interpreta-tion) basis.

4. Does the management plan complywith the Scenic Area Act’s mandate toprotect scenic resources from cumula-tive adverse effects?

[3] The Scenic Area Act provides, amongother things, that the contemplated manage-ment plan ‘‘shall include provisions to * * *require’’ that commercial, residential, andmineral resource development occurring out-side of urban areas ‘‘take place without ad-versely affecting the scenic, cultural, recre-ation, or natural resources of the scenicarea.’’ 16 U.S.C. § 544d(d)(7), (8), and (9)(emphasis added). For purposes of thoseand all other provisions of the Act, ‘‘adverse-ly affecting’’ is defined as

‘‘a reasonable likelihood of more than mod-erate adverse consequences for the scenic,cultural, recreation or natural resources ofthe scenic area, the determination of whichis based on

‘‘(1) the context of a proposed action;

S 386‘‘(2) the intensity of a proposed action,including the magnitude and duration of animpact and the likelihood of its occurrence;

‘‘(3) the relationship between a proposedaction and other similar actions which areindividually insignificant but which mayhave cumulatively significant impacts;and‘‘(4) proven mitigation measures which theproponent of an action will implement aspart of the proposal to reduce otherwisesignificant affects to an insignificant level.’’

16 U.S.C. § 544(a) (emphasis added).Based on the foregoing provisions, peti-

tioners argued to the Court of Appeals thatthe plan must include standards that protectthe Gorge’s scenic resources from adverseeffects, including cumulative adverse effects,caused by commercial, residential, and min-eral resources development. Petitioners as-serted that the management plan violatesthat requirement insofar as it contains ‘‘nostandards, guidelines, criteria, or methodolo-gy for determining what causes cumulativeadverse impacts to scenic resources, how tomeasure such impacts, or how they are regu-lated.’’ 16

The Court of Appeals concluded, however,that

‘‘the Act contains no provision requiringthe commission to spell out specific stan-dards for determining, in advance, whatcauses adverse cumulative impacts to sce-nic resources. To the contrary, the Actmakes quite clear that what constitutes an‘adverse effect,’ of which cumulative effectsare a component, is a matter determined inthe context of specific applications in light

interpretation of the relevant provision offered byComptroller’s counsel, when Comptroller itselfhad not expressly articulated any position at theadministrative level as to the meaning and im-pact of that provision). The United States Su-preme Court has explained that distinction onthe ground that ‘‘ ‘Congress has delegated to theadministrative official and not to appellate coun-sel the responsibility for elaborating and enforc-ing statutory commands.’ ’’ Bowen, 488 U.S. at212, 109 S.Ct. 468 (quoting Investment Co. Insti-tute, 401 U.S. at 628, 91 S.Ct. 1091).

16. The commission’s response in the Court ofAppeals focused primarily on its own good inten-tions. It noted that, although the managementplan addressed cumulative impacts in a numberof ways, commission staff had reported that theplan’s cumulative impacts analysis could be im-proved and that the commission had been deter-

mined to address the issue in the revision pro-cess. The commission explained, however, thatbudget constraints had prevented it from actingon that intention, but that it had developed along-term plan for addressing the topic. It con-cluded that it had ‘‘not abuse[d] its discretion tomake no changes to this topic.’’

The Court of Appeals correctly rejected that ar-gument as unresponsive to petitioners’ challenge:‘‘Either the management plan, as revised, vio-lates the Act or it does not. The fact that theprocess by which the Commission arrived at thefinal product was a reasonable one does not alterthe lawfulness—or unlawfulness, as the case maybe—of the product itself.’’ Friends of ColumbiaGorge, 215 Or.App. at 578[, 171 P.3d 942]. Thecourt then supplied its own reason for rejectingpetitioners’ argument—that the Act did not re-quire the ‘‘standards’’ that petitioners were de-manding.


of their intensity, their S 387relationship withother similar actions, and any mitigationmeasures that may be required. 16 U.S.C.§ 544(a). The statute is unambiguous onthat point. But even if that were not so,we would arrive at the same conclusionunder the deferential standard that Chev-ron requires. The commission’s reading ofthe Act to not require more detailed apriori standards for determining adversecumulative effects is at least a reasonableconstruction of the statute.’’

Friends of Columbia Gorge, 215 Or.App. at586, 171 P.3d 942.

Petitioners argue that the Court of Ap-peals is wrong about what the Act requires.They contend, first, that the Act ‘‘expresslyrequires the commission to include ‘stan-dards’ in the management plan for prevent-ing adverse effects to scenic resources, 16U.S.C. § 544d(d), and the Act’s definition of‘adversely affect’ includes cumulative im-pacts, 16 U.S.C. § 544(a)(3).’’ We note, re-specting this argument, that the three provi-sions at issue, 16 U.S.C. § 544d(d)(7), (8), and(9), require the commission to include ‘‘provi-sions’’ in the management plan that ‘‘require’’that commercial, residential, and mineral re-source development take place without ad-versely affecting scenic resources. The re-quirement that the management plan itselfinclude such provisions is a ‘‘standard’’ thatthe management plan must meet, but nothingin the Act states that the required provisionsmust themselves take the form of ‘‘stan-dards.’’

Still, we agree with petitioners that stan-dards of some sort are required. The rele-vant provisions, 16 U.S.C. § 544d(d)(7), (8),and (9), direct the commission to includeprovisions in the management plan that ‘‘re-quire’’ that development occur without caus-ing more than ‘‘moderate’’ adverse effects,

including adverse cumulative effects, to sce-nic resources. If those requirements are tobe enforceable, implementing agencies musthave some basis for determining when theyhave—or have not—been met. The manage-ment plan must contain provisions that bysome means ‘‘require’’ that residential, com-mercial, and mineral resource developmentoccur without causing adverse cumulative ef-fects to scenic resources.17

S 388The commission responds that the man-agement plan does contain such provisions.It points, first, to a guideline that provides:

‘‘Determination of potential visual effectsand compliance with visual subordinancepolicies shall include consideration of thecumulative effects of proposed develop-ments.’’

Management Plan, Part I, ch. 1 (Scenic Re-sources), GMA Provisions, Key Viewing Ar-eas, GMA Guidelines 3. The referenced ‘‘vi-sual subordinance policies’’ appear to besummarized by a related policy,18 which pro-vides, in part, that,

‘‘[e]xcept for new production and/or devel-opment of mineral resources, new develop-ment on lands seen from key viewing ar-eas [19] shall be visually subordinate to itslandscape setting.’’

Management Plan, Part I, ch. 1 (Scenic Re-sources), GMA Provisions, Key Viewing Ar-eas, GMA Policies 2.20 A related guidelinesimilarly provides:

‘‘Each development shall be visually subor-dinate to its setting as seen from keyviewing areas.’’

Management Plan, Part I, ch. 1 (Scenic Re-sources), GMA Provisions, Key Viewing Ar-eas, GMA Guidelines 2.

The commission also contends that theplan regulates and precludes cumulative ad-verse effects on scenic resources at a ‘‘land-

17. In that respect, we think that the Act is unam-biguous and that, as such, any claim to deferenceunder Chevron would be misplaced.

18. Although labeled a ‘‘policy,’’ that statement isworded more like a directive or guideline, andwould seem to have a similar legal effect.

19. ‘‘Key viewing areas’’ are designated vantagepoints that provide ‘‘public scenic viewing oppor-tunities’’—generally, important public roads,

parks, and trails. Management Plan, Part I, ch.1 (Scenic Resources), GMA Provisions, KeyViewing Areas, GMA Policies 1; Glossary.

20. A structure or land use is ‘‘visually subor-dinate’’ to its setting if it ‘‘does not noticeablycontrast with the surrounding landscape, asviewed from a specified vantage point.’’ Man-agement Plan, Glossary.


scape setting’’ level. It notes that themanagement plan describes and maps 13different ‘‘landscape settings’’ 21 occurring inthe scenic area and sets out various policiesand guidelines that are directed at ‘‘main-taining the integrity’’ of each of them. Forexample,

S 389‘‘[n]ew developments shall be compati-ble with their landscape setting and main-tain the integrity of that setting. Expan-sion of existing developments shall becompatible with their landscape settingand maintain the integrity of that settingto the maximum extent possible.’’

Management Plan, Part I, ch. 1 (Scenic Re-sources), GMA Provisions, Landscape Set-tings, GMA Policies 1. And

‘‘[m]aintenance of landscape settings shallbe a key consideration in determining min-imum parcel sizes for GMA land use desig-nations.’’

Id., GMA Policies 4.

Finally, the commission observes that the2004 revisions include provisions calling fordevelopment and implementation of ‘‘scenichighway corridor strategies’’ for Interstate

84 and SR 14, the two principal highwaysthat run through the Gorge, which strategieswould include design guidelines directed atprotecting scenic resources along those corri-dors.22 The import of those provisions anddesign guidelines to the present ‘‘cumulativeeffects’’ issue is unclear, but S 390we assumethat the commission points to them as evi-dence that it has developed, and will continueto develop, guidelines designed to maintainoverall scenic conditions at a certain levelalong the I–84 and SR–14 corridors, therebyprotecting scenic resources along those corri-dors from adverse cumulative effects.23

We are persuaded that at least some of thecited provisions ‘‘require’’ that commercial,residential, and mineral resource develop-ment take place without adversely affectingscenic resources. In particular, the KeyViewing Areas policies and guidelines requireeach new development to be ‘‘visually subor-dinate’’ to the relevant ‘‘setting’’ or ‘‘land-scape setting’’ and expressly provide that thedetermination of visual subordinance mustinclude an assessment of cumulative effects.When those ‘‘key viewing areas’’ policies andguidelines are read together, it is clear that

21. ‘‘Landscape settings’’ are ‘‘the combination ofland use, landform, and vegetation patterns thatdistinguish an area in appearance and characterfrom other portions of the Scenic Area.’’ Man-agement Plan, Glossary. The landscape settingsdesignated in the plan include ‘‘Pastoral,’’ ‘‘Coni-ferous woodland,’’ ‘‘Oak-pine woodland,’’‘‘Grassland,’’ ‘‘Rural residential,’’ ‘‘Residential,’’‘‘Village,’’ ‘‘River bottomlands,’’ and ‘‘Gorgewalls, canyons and wildlands.’’ For each land-scape setting, the management plan provides ageneral description of the land uses, landforms,and vegetation that are typical, the types of re-creational uses that are compatible with the set-ting, a recommended parcel size for new landdivisions, and a set of ‘‘design guidelines’’ thatare to be used to achieve visual subordinance forboth new and expanding developments. The de-sign guidelines pertain to the positioning andheight of structures, the type of vegetation to beused for screening, etc., and are often phrased inprecatory, rather than mandatory, terms. Seegenerally Management Plan, Part I, ch. 1 (ScenicResources), GMA Provisions, Landscape Set-tings.

22. The commission refers specifically to two‘‘scenic travel corridors’’ policies:

‘‘A scenic highway corridor strategy shall bedeveloped 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 Wash-ington State Route 14 (SR 14).’’

Management Plan, Part I, ch. 1 (Scenic Re-sources), GMA Provisions, Scenic Travel Corri-dors, GMA Policies 1.

‘‘The goals of the scenic corridor strategiesshall include: 1) providing a framework forfuture highway improvements and manage-ment that meet Management Plan scenicguidelines and public transportation needs;and 2) creating design continuity for the high-way corridor with the Scenic Area. Corridorstrategies shall, at a minimum, include: a)design guidelines (e.g. materials, conceptualdesigns, etc.) for typical projects that are con-sistent with Management Plan scenic resourcesprovisions and b) an interdisciplinary, inter-agency project planning and development pro-cess.’’

Id. at GMA Policies 2.

23. The commission also relies on ManagementPlan, Part I, ch. 1 (Scenic Resources), GMAProvisions, Landscape Settings, GMA Policies 5.However, that policy pertains to recreational us-age and, as such, does not appear to be relevantto the issue of the management plan’s compli-ance with the requirement that residential, com-mercial, and mineral resource development takeplace without adversely affecting scenic re-sources. 16 U.S.C. § 544d(d)(7), (8), and (9).


the management plan requires implementingagencies to make such a cumulative impactsdetermination each time that they are pre-sented with a development application, and toprohibit development that would adverselyaffect scenic resources.

Petitioners’ argument reflects a basic dis-satisfaction with the management plan’scase-by-case approach to cumulative impacts,perhaps because petitioners believe that theresponsible agencies—the counties—have notmeaningfully implemented it. But that prob-lem—if it exists—relates to how the countiesapply the management plan, not to the plan’sconsistency with the Act. We conclude thatthe provisions in the management plan re-quiring planners to take cumulative impactsinto account when determining, for each de-velopment proposal, how the visual subordi-nance standard can be achieved, are consis-tent with 16 U.S.C. § 544d(d)(7), (8), and (9)and 16 U.S.C. § 544(a)—that is, the plancontains provisions requiring that develop-ment in the scenic area take place withoutcausing adverse effects, including cumulativeeffects, to scenic resources.

S 391As noted, the commission also contendsthat certain of the guidelines and policies inthe management plan reflect a ‘‘landscapesetting’’ approach to the requirement thatdevelopment occur without causing adversecumulative effects to scenic resources. Aswe discuss below in analyzing a similarquestion relating to adverse cumulative ef-fects on natural resources, such a landscape-based approach theoretically could fulfill thestatutory requirements that development oc-cur without causing adverse cumulative ef-fects. However, we have no occasion to con-sider the particulars of the commission’stheory with respect to adverse cumulativeeffects on scenic resources, because we al-ready have concluded that the managementplan fulfills the statutory requirements atissue insofar as it requires consideration ofadverse cumulative effects before develop-

ment is permitted. In short, we concludethat the management plan complies with thestatutory requirements at issue. The Courtof Appeals correctly rejected petitioners’claim of error in that regard.

5. Is the policy that the parties identifyas ‘‘GMA Scenic Resource Policy 1’’inconsistent with the Act insofar as itallows development projects that willadversely affect scenic resources to goforward?

[4] The revisions to the managementplan include a scenic resources policy thatprovides:

‘‘Except for production and/or develop-ment of mineral resources and disposalsites for spoil materials from public roadmaintenance activities, nothing in the keyviewing areas or landscape settings guide-lines in this chapter shall be used asgrounds to deny proposed uses otherwiseauthorized by the land use designation.However, the guidelines may affect thesiting, location, size, and other design fea-tures of proposed developments, and com-pliance with them is mandatory.’’

Management Plan, Part I, ch. 1 (Scenic Re-sources), GMA Provisions, Overall ScenicProvisions, GMA Policies 1.

Petitioners argue that that policy is incon-sistent with provisions in the Act—specifical-ly, 16 U.S.C. § 544d(d)(7), (8), and (9)—thatrequire that development S 392take place with-out adversely affecting scenic resources. Pe-titioners contend that the policy can be readin only one way—as requiring implementingagencies to approve proposed developmentsthat do not comply with the managementplan’s scenic protection guidelines and thattherefore ‘‘adversely affect’’ scenic re-sources.24

The commission, in its brief to this court,appears to accept petitioners’ assessment

24. Before the Court of Appeals, petitioners alsoargued that the commission’s staff had misinter-preted the policy in a way that violated the Act,i.e., as precluding any denial of a proposed usebased on landscape settings and key viewingareas guidelines, even when the applicant refusesto take available steps to achieve compliancewith those guidelines. The Court of Appeals

concluded that, insofar as that argument per-tained to a possible interpretation of the Act bythe Commission, it was not ripe for review.Friends of Columbia Gorge, 215 Or.App. at 576,171 P.3d 942. We agree and therefore confineour discussion to petitioners’ alternative argu-ment—that the policy can only be read in a waythat violates the Act.


that the challenged policy requires agenciesto approve projects that do not comply withkey viewing areas and landscape settingguidelines. However, the commission arguesthat petitioners are wrong in assuming that afailure to meet key viewing area and land-scape setting guidelines necessarily results inan adverse impact on scenic resources. Thecommission notes that, according to the Act,the determination of ‘‘adverse affect’’ re-quires consideration of the context of a pro-posed action and other factors. 16 U.S.C.§ 544(a)(1). The commission concludes thatthe requirement that the context of a propos-al be considered

‘‘is important because if the context makesstrict compliance with the key viewing ar-eas and landscape settings guidelines im-possible, then this policy allows some flexi-bility to permit agencies to approve thedevelopment—assuming, of course, that itdoes not cause an adverse effect.’’

We do not accept either petitioners’ or thecommission’s explanation of the policy. Al-though the first sentence of the policy tellspermitting agencies that they cannot use thescenic guidelines as a basis for denying aproposed use, the second sentence providesin no uncertain terms that compliance withthe guidelines that control siting, design, andother conditions of use—which are designedto ensure that scenic resources are not ad-versely affected—‘‘is mandatory.’’ TheS 393two provisions do not conflict. The secondsimply qualifies what would be an absolutegrant of authority in the first sentence, ifthat sentence stood alone: Although a countycannot deny an application for an otherwisepermissible use outright, the applicant mustaccept any conditions—even draconianones—that are necessary to ensure that thedevelopment take place without affecting sce-nic resources and complies with the guide-lines.25 If the applicant does not or cannotsufficiently alter the proposal to satisfy theconditions required by the second sentence,

permission to carry out the proposed activitymust be denied. Petitioners’ argument inthat respect claims too much.

6. Does the management plan complywith the Scenic Area Act’s require-ment that it protect natural resourcesfrom cumulative adverse effects?

[5] Petitioners’ argument with respect tothis assignment of error recalls its earlierargument that the management plan violatesthe Scenic Area Act’s mandate to protectscenic resources from cumulative adverse ef-fects. Petitioners again rely on the defini-tion of ‘‘adversely affect’’ in 16 U.S.C.§ 544(a) (set out above, 346 Or. at 396, 213P.3d at 1176, and on 16 U.S.C. § 544d(d)(7),(8), and (9), which call for provisions in themanagement plan ‘‘requir[ing]’’ that commer-cial, residential, and mineral resource devel-opment occurring outside of urban areas‘‘take place without adversely affecting thescenic, cultural, recreation, or natural re-sources of the scenic area.’’ They reasonablyand correctly propose that the managementplan must include provisions that requirethat development not cause more than mod-erate adverse effects, including adverse cu-mulative effects, to natural resources in thescenic area. And they argue (much as theydid with respect to the plan’s treatment ofscenic resources) that the management plandoes not include provisions of that sort.

S 394The present inquiry differs from ourprevious inquiry into the management plan’shandling of cumulative effects to scenic re-sources in one important respect: Thechapter of the management plan devoted toprotection of natural resources contains nopolicy or guideline that is equivalent to thenoted key viewing areas, guidelines that re-quire that each development shall be visual-ly subordinate to its setting, the GMA, andthat explicitly require that determination ofcompliance with that visual subordinance

25. Notable in that regard is the fact that themanagement plan places no limitations on theconditions that counties may impose on pro-posed developments to ensure that they meet theprimary scenic protection requirement of visualsubordination to their setting. See ManagementPlan, Part I, ch. 1 (Scenic Resources), GMA

Provisions, Key Viewing Areas, GMA Guideline4(B) (‘‘Conditions may be applied to various ele-ments of proposed developments to ensure theyare visually subordinate to their setting as seenfrom key viewing areas, including, but not limit-ed to [siting, retention of existing vegetation,etc.]’’).


policy include consideration of cumulativeeffects. Management Plan, Part I, ch. 1(Scenic Resources), GMA Provisions, KeyViewing Areas, GMA Guidelines 2, 3. Asdiscussed, those two guidelines, in combina-tion, satisfy, on a case-by-case basis, thestatutory directive that the managementplan require that development take placewithout causing adverse cumulative effectsto scenic resources. See 346 Or. at 390–91,213 P.3d at 1178–79.

The commission agrees that, with regardto natural resources, the management plandoes not require a case-by-case determina-tion of whether a development causes anyadverse cumulative effect. The commissionasserts, however, as it did in the Court ofAppeals, that the Act does not require it toprevent adverse cumulative effects on naturalresources in any particular way and that ithas chosen to confront the issue using a‘‘landscape approach’’ rather than through aproposal-by-proposal examination of cumula-tive effects. The commission cites ten provi-sions in the management plan that, in itsview, reflect that landscape approach. Theyare:

Management Plan, Part II, ch. 1 (Agricul-tural Land), GMA Provisions, Large–Scaleand Small–Scale Agriculture, GMA Poli-cies, Land Use Policies 5C (stating that,for land designated as Agricultural Land,minimum lot sizes shall be established thatare adequate to maintain agricultural oper-ation and that ‘‘[t]ake into account thecommon field size for crops or livestock,adjacent uses, parcel sizes in the area,common size or economic unit for farmsand ranches in the area, the existing land-scape setting, wildlife habitat, scenic sensi-tivity, and other factors’’).

Management Plan, Part II, ch. 2 (ForestLand), GMA Provisions, GMA Policies,Land Use Policies 7 (stating that a mini-mum parcel size ‘‘shall be established forthe creation S 395of new parcels on landsdesignated Small Woodland, consideringthe common size of forest units in the area,the impact on management efficiency, theexisting landscape setting, wildlife habitat,and other resource factors’’).

Management Plan, Part II, ch. 4 (Residen-tial Land), GMA Provisions, GMA Policies,Land Use Policies 1C (stating that, on landdesignated as Residential Land, minimumparcel sizes for land divisions shall bebased on, among other things, protectionof wildlife habitat, plant habitat, and wet-lands).Management Plan, Part II, ch. 3 (OpenSpaces), GMA Provisions, GMA Policies 8(‘‘Those wetlands with remarkable values,such as sensitive wildlife habitat or rareplant species, that are susceptible to dis-turbance from use and development shallbe designated Open Space.’’).Management Plan, Part II, ch. 3 (OpenSpaces), GMA Provisions, GMA Policies 9(‘‘Open Space designations shall be appliedto those most significant and sensitive nat-ural areas that are susceptible to distur-bance from use and development.’’).Management Plan, Part II, ch. 3 (OpenSpaces), GMA Provisions, GMA Policies 11(‘‘Habitat areas of animal species that areclassified as endangered or threatened byfederal or state endangered species acts orthe Washington Wildlife Commission maybe designated Open Space.’’).Management Plan, Part II, ch. 5 (Commer-cial Land), GMA Provisions, GMA Policies,Designation Policies 2 (‘‘Areas outside Ur-ban Areas shall be designated as Commer-cial where commercial use took place inthe immediate past or is now taking placeand would not adversely affect scenic, nat-ural, cultural, or recreation resources.’’).Management Plan, Part II, ch. 6 (Recre-ation Designations), GMA Provisions, Pub-lic Recreation, GMA Policies 2 (‘‘Landsshall be considered highly suitable for Pub-lic Recreation designation if they possesssignificant potential for providing two ormore of [certain listed recreational] oppor-tunities, are readily accessible, and lackhazards or highly sensitive resources.’’).Management Plan, Part II, ch. 6 (Recre-ation Designations), GMA Provisions,Commercial Recreation, GMA Policies 2C(‘‘Lands may be considered highly suitablefor Commercial S 396Recreation uses if[among other things] * * * [p]otential de-velopment on the site would not adversely


affect sensitive wildlife habitat or plants,wetlands, or aquatic or riparian areas.This may be achieved by either designingthe development to avoid areas containingsuch resources or by applying mitigationmeasure that reduce effects on such re-sources to less than adverse levels.’’).

As can be seen, three of the cited provisionsregulate the determination of minimum par-cel sizes in various land use designations,while the remaining six provisions each setout a standard for determining whether landis suitable for a particular land use designa-tion. The commission’s explanation of howthose provisions accomplish what is required(i.e., that development occur without adversecumulative effects to natural resources) con-sists of a single sentence:

‘‘These guidelines take a landscape ap-proach to protecting against cumulativeadverse impact to natural resources—through the assignment of land use desig-nations and minimum parcel sizes—i.e.,pre-defining the types and amount of de-velopment appropriate to avoid cumulativeadverse effect on natural resources.’’

Before we consider the validity of the com-mission’s landscape approach, we focus onwhat the Act actually requires. Petitionersargue that, contrary to the commission’s po-sition, the Act mandates a case-by-case ap-proach to cumulative effects. They note thatthe Act’s definition of the term ‘‘adverselyaffect’’ is written in terms of the effects of ‘‘aproposed action,’’ and that the determinationof ‘‘adverse effect’’ is to be based on, amongother things, ‘‘the relationship between a pro-posed action and other similar actions whichare individually insignificant but which mayhave cumulatively significant impacts.’’ 16U.S.C. § 544(a).

We are not persuaded by petitioners’ anal-ysis. The relevant provisions in the act un-ambiguously focus on a result—that develop-ment will have no adverse effect, includingcumulative effects, to natural resources—rather than on any particular method forachieving that result. See 16 U.S.C.§ 544d(d)(7), (8), and (9). And because thestatute is unambiguous on that point, defer-ence to the commission’s interpretation of theAct is not relevant. Although the Act may

explain ‘‘adverse effect’’ in terms of the ef-fects of individual S 397development proposals,that does not mean that the commissioncould not adopt a broad preventative ap-proach: The commission might, for example,create a comprehensive system of landscape-based regulations limiting the amount andtype of development to such a degree thatadverse cumulative effects could not occur.But, if the commission chooses to proceed inthat way, the relevant provisions still mustfulfill the statutory mandate of requiringthat development not cause adverse cumula-tive effects to natural resources. And that,we think, is the place where the commission’sargument fails.

Certainly, some of the provisions that thecommission points to are designed to ensure,or would have the effect of ensuring, thatresidential, commercial, and resource devel-opment do not adversely affect natural re-sources in the particular land use designa-tions where they apply. The three OpenSpace designation provisions cited by thecommission are examples. Collectively,those provisions require that land with themost significant and sensitive natural re-sources be placed in the Open Space designa-tion. Under those provisions, there is nopotential, on Open Space land, for adversecumulative effects caused by residential,commercial, or mineral resource develop-ment. That is so because, on Open Spaceland, no residential, commercial, or mineralresource development is permitted at all.

The provisions pertaining to CommercialRecreation land designation also would seemto be designed to preclude the possibility ofadverse cumulative effects on natural re-sources on Commercial Recreation land.The commercial recreation policy cited bythe commission provides that land may bedesignated for Commercial Recreation usesonly if ‘‘potential development on the sitewould not adversely affect sensitive wildlifehabitat or plants, wetlands, or aquatic orriparian areas.’’ That policy would not pre-clude cumulative adverse effects in itself, butit must be read in light of a related provision(not cited by the commission), which speci-fies:


‘‘Lands may be considered highly suitablefor Commercial Recreation uses if * * *

‘‘ * * * * *S 398‘‘Potential development on the site

would not have cumulative adverse effectsupon scenic, cultural, natural or recre-ation resources, considering other develop-ment (existing or authorized in the man-agement plan) in the Scenic Area or in thevicinity of the development.’’

Management Plan, Part II, ch. 6 (RecreationDesignations), GMA Provisions, CommercialRecreation, GMA Policies 2E.

But most of the other provisions that thecommission cites do not accomplish what thecited Open Space and Commercial Recre-ation provisions do. For example, the mini-mum parcel size provisions for land designat-ed for Agricultural or Forest use (where asignificant level of residential development ispermitted) merely require that wildlife habi-tat (a single component of the Gorge’s natu-ral resources) be ‘‘tak[en] into account’’ or‘‘consider[ed]’’ when setting the minimumparcel size. The provisions contain no explic-it or implied reference to adverse cumulativeeffects and, more importantly, no require-ment that decision-makers select a minimumparcel size that eliminates any potential foradverse effects to natural resources.

It is true that the commission makes someeffort to use land use designations and mini-mum parcel size determinations to eliminatethe potential for adverse cumulative effectsto natural resources. However, those effortsare incomplete. For Agricultural and Forestland and for a large portion of the landdesignated as Residential, there is no provi-sion that even remotely demonstrates thatthe landscape-level approach will avoid oreliminate the adverse cumulative effects thatthe Act prohibits. It follows that the com-mission cannot successfully argue that, on abroad landscape level, the management plan‘‘requires’’ that development occur withoutcausing adverse cumulative effects to naturalresources.

We already have noted (and the commis-sion has acknowledged) that no provision or

standard requires case-by-case analysis ofthe cumulative effects of commercial, resi-dential, and mineral resource development onnatural resources. Although such case-by-case review might not be necessary if thecommission had adopted adequate alterna-tives, we are unable to discern any otherprovisions that S 399might address the adversecumulative effect problem. We conclude thatthe management plan fails to require thatresidential, commercial, and mineral resourcedevelopment take place without causing ad-verse cumulative effects to natural resources.In that respect, it violates the Act. The Courtof Appeals erred in concluding otherwise.

7. Does the management plan violate theAct insofar as it allows livestock graz-ing, without any review of resourceimpacts, on most of the land in thescenic area?

[6] Under the management plan, live-stock grazing is allowed ‘‘outright,’’ i.e., with-out any review, on almost all land use desig-nations. The only exceptions are OpenSpace land and ‘‘Agriculture–Special land.’’Management Plan, Part II, ch. 7 (GeneralPolicies and Guidelines), Uses Allowed Out-right, All Land Use Designations ExceptOpen Space, GMA/SMA Guidelines 1A (per-mitting ‘‘agricultural uses’’ outright in allland designations except Open Space); Glos-sary (defining ‘‘agricultural use’’ to include‘‘feeding, breeding, management and sale oflivestock’’). Petitioners argue that that ar-rangement ‘‘violates the Act’s mandate toprotect and enhance natural resources,’’ be-cause livestock grazing has a high potentialfor adversely affecting, inter alia, fish andwildlife habitat.

As the commission points out, petitionersposit a general statutory mandate to ‘‘protectand enhance natural resources’’ that simplydoes not exist. Certainly, the Act providesthat the management plan must ‘‘protect andenhance open spaces,’’ 16 U.S.C.§ 544d(d)(3), which are defined, in part, interms of natural resources that are presenton land designated as open space, 16 U.S.C.§ 544(l ).26 But those natural resources are

26. 16 U.S.C. § 544(l ) defines ‘‘open spaces’’ as‘‘unimproved lands not designated as agricultur-

al or forest lands * * * and designated as openspace pursuant to section 544d of this title.


not relevant to petitioners’ argument, be-cause, to the extent that grazing is allowed atall on Open Space land, it is subject to reviewfor ‘‘compliance with guidelines for the pro-tection of * * * natural * * * resources.’’Management Plan, Part II, ch. 3 (OpenSpaces), GMA S 400Provisions, GMA Guide-lines, Review Uses—All Lands DesignatedOpen Spaces: Gorge Walls and Canyonlands1; Balch Lake Wetlands Area 1. The Act alsoprovides that the management plan mustprotect natural resources from adverse ef-fects caused by commercial, residential, andmineral resource uses, 16 U.S.C.§ 544d(d)(7), (8), and (9), but it does notestablish an equivalent requirement with re-spect to adverse effects caused by agricultur-al activities (such as grazing).

Petitioners fall back on the fact that one ofthe Act’s stated purposes is ‘‘to establish anational scenic area to protect and providefor the enhancement of the scenic, cultural,recreational, and natural resources of theColumbia River Gorge.’’ 16 U.S.C.§ 544a(1). However, given that the Act alsopurports to support and protect the economyof the Gorge, 16 U.S.C. § 544a(2), that itclearly sets a high value on agricultural uses,including grazing, as an important compo-nent of that economy, 16 U.S.C. § 544d(b)(2)and (d)(1), and that it sets out, in specificterms, the circumstances in which protectionof natural and other resources must takeprecedence over economic values,27 the broadstatement of purpose at 16 U.S.C. § 544a(1)simply cannot be read as mandating protec-tion of all natural resources in all circum-stances and in every part of the Scenic Area.

In short, we agree with the commissionthat the Act does not require the manage-ment plan to protect all of the scenic areasnatural resources from adverse effectscaused by agricultural uses. It follows thatthe commission has not violated the Act byallowing livestock grazing operations in mostof the scenic area without prior review todetermine how those operations will affectnatural resources. The Court of Appeals didnot err in rejecting that claim of error.

8. Does the management plan violate theAct insofar as it fails to inventory andprotect geologic resources and requireavoidance of residential and commer-cial development within geologicalhazard areas?

[7] S 401Petitioners observe that the man-agement plan contains no guidelines that arespecifically directed at protecting ‘‘geologicalresources’’ or avoiding ‘‘geological hazards.’’Petitioners argue that the managementplan’s failure to address those topicsamounts to a violation of the Act. Petitionersacknowledge that the Act nowhere uses theterms ‘‘geologic resources’’ and ‘‘geologicalhazard areas.’’ They argue, however, thatgeologic resources and hazards are ‘‘naturalresources’’ within the meaning of the Actand that, consequently, the Act requires themanagement plan to inventory and protectgeological resources to the extent that it re-quires the plan to inventory and protect nat-ural resources. Petitioners point to severalprovisions of the Act as relevant to thatproposition: 16 U.S.C. § 544a(1) (purpose ofAct is to ‘‘protect and provide for the en-hancement of the * * * natural resources ofthe Columbia River Gorge’’); 16 U.S.C.§ 544d(d)(7), (8), and (9) (management planmust include provisions requiring that com-mercial, residential and mineral resource de-velopment ‘‘take place without adversely af-fecting the * * * natural resources of thescenic area) (emphasis added); 16 U.S.C.§ 544d(a)(1)(A) (commission shall complete aresource inventory documenting ‘‘all existingland uses, natural features and limitations,* * *’’) (emphasis added); and 16 U.S.C.§ 544d(c)(1) (management plan must be‘‘based on the results of the resource inven-tory 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 haz-ards’’ were ‘‘natural resources’’ as that termis used in the Act. Rather, the court appears

Open spaces include[, among other things, fishand wildlife habitat, ecologically significant natu-ral areas, water areas and wetlands, etc.].’’

27. See the list of standards for the managementplan set out at 16 U.S.C. § 544d(d).


to have assumed that geological resourcesand hazards were covered by the statutoryterm, and then to have concluded that noth-ing in the Act required the management planto specifically address them or any othercategory of natural resources. The courtexplained:

‘‘Native plants are a natural resource inthe scenic area, but that does not meanthat the Act requires the management planto include provisions specifically address-ing the protection of each and every one.Likewise, fall foliage in the scenic area is aphysical characteristic, but that does notmean that the management plan must in-clude S 402provisions specifically pertainingto that phenomenon. If Congress hadwanted such specifics included in the com-mission’s management plan, all it had to dowas say so.’’

Friends of Columbia Gorge, 215 Or.App. at596, 171 P.3d 942.

That explanation may be correct as far asit goes, but it does not speak to the essentialquestion. The Act provides that the man-agement plan must include provisions requir-

ing that commercial, residential, and mineralresource development take place without ad-versely affecting the scenic area’s naturalresources. 16 U.S.C. § 544d(d)(7), (8), and(9).28 If geological resources are natural re-sources within the meaning of the Act, thenthe management plan must include provi-sions that will preclude adverse effects tothose resources—whether or not those provi-sions specifically identify ‘‘geological re-sources’’ as their object. The managementplan could S 403satisfy that requirement with-out any specific mention of geological re-sources by, for example, setting out a catch-all provision directed at protecting all ‘‘natu-ral resources.’’ But the essential point isthat the management plan must protect all‘‘natural resources’’—whatever that termmay encompass.

It follows that the first order of business,in evaluating petitioners’ claim, is to deter-mine whether geological resources and haz-ards are in fact ‘‘natural resources’’ for pur-poses of the Act. The Act itself does notdefine that term, and the term is not one thathas obvious parameters.29 In fact, the term

28. We focus here on the requirements that themanagement plan contain provisions precludingadverse effects to natural resources. 16 U.S.C.§ 544d(d)(7), (8) and (9). As noted above, peti-tioners also rely on 16 U.S.C. § 544a(1), whichstates that one of the purposes of the Act is ‘‘toestablish a national scenic area to protect andprovide for the enhancement of the * * * naturalresources of the Columbia River Gorge.’’ How-ever, given that petitioners’ claim of error focus-es on supposed omissions from the managementplan, the cited statement of purpose would ap-pear to be irrelevant, because it does not purportto control the contents of the management plan.Petitioners also rely on the Act’s requirementsthat the commission complete a ‘‘resource inven-tory’’ documenting ‘‘natural features and limita-tions’’ and ‘‘natural resources’’ in the scenicarea, and that it develop land use designationsthat are based, in part, on the results of thoseinventories. 16 U.S.C. § 544a(1)(A); 16 U.S.C.§ 544d(b)(1). However, petitioners’ citation tothose provisions does not appear to add anythingto their argument. The commission has invento-ried ‘‘geological features’’ including, apparently,‘‘hazards,’’ see Management Plan, Introduction,Table 1, ‘‘Resource Inventories,’’ and it also ap-pears to have required use of information ob-tained in that inventory in making land use andminimum parcel size designations. See, e.g.,Management Plan, Part II, ch. 4 (ResidentialLand), 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 limitedto steep slopes, fire danger, and groundwaterpollution.’’); Management Plan, Part I, ch. 4(Recreation Resources), GMA Provisions, Recre-ation Intensity Classes, GMA Policies 4 (‘‘Landslope, road access, the presence of geologic orother hazards and the presence of significant orsensitive resources shall be primary consider-ations in determining the suitability of lands forrecreation.’’); Management Plan, Part II, ch. 3(Open Spaces), GMA Provisions, GMA Guide-lines, Gorge Wall and Canyonlands (reflectingfact that open space designation may be based onpresence of gorge walls and canyons, which areobvious geological features of the scenic area).

29. The Act does not appear to mean the term inits most traditional sense of naturally occurringsubstances that have economic value. Rather, italso includes the additional sense that the natu-rally occurring features and materials are valuedfor other than economic reasons. Nevertheless,the use of the word ‘‘resource ’’ (instead of, forexample, ‘‘features’’) implies that its object isneeded, useful, or valuable. See Webster’s ThirdNew Int’l Dictionary 1934 (unabridged ed 2002)(defining ‘‘resource’’ as ‘‘a new or a reservesource of supply or support: a fresh or addition-al stock available at need; something in reserveor ready if needed * * *. [R]esource may referto any asset or means benefiting or assistingone.’’).


conveys the very kind of ambiguity that,according to the applicable standard of re-view,30 might warrant deference to the com-mission’s reasonable construction of theterm.

And here the difficulty arises. As petition-ers note, the commission has construed theterm: The glossary to the management plandefines ‘‘natural resources’’ to include ‘‘natu-rally occurring features including land, wa-ter, air, plants, animals (including fish), plantand animal habitat, and scenery.’’ That defi-nition is sufficiently broad that, whatever‘‘geological resources’’ and ‘‘geological haz-ards’’ might be, they fall within it. Petition-ers therefore conclude that, because geologi-cal resources fall within the commission’sown definition of ‘‘natural resources,’’ thecommission must include provisions to pro-tect them in the management plan, as theAct requires.

But there is another definition of theterm ‘‘natural resources’’ that appears in themanagement plan. The chapter of the man-agement plan that is devoted to ‘‘NaturalResources’’ contains its own, narrower defi-nition of the term: ‘‘For this chapter, natu-ral resources mean wetlands, streams,S 404ponds and lakes, riparian areas, wildlifeand wildlife habitat, rare plants, and naturalareas.’’ 31 Management Plan, Part I, ch. 3(Natural Resources). Given that the Natu-ral Resources chapter is the single part ofthe plan that deals most directly with themandate that is the focus of petitioners’ ar-gument (that natural resources be protectedfrom adverse effects of commercial, residen-tial, and mineral resource development), it isarguable that that chapter definition, andnot the one that appears in the glossary, isthe one that is relevant to the present anal-ysis.

But is that definition of ‘‘natural re-sources’’—the one that appears in the ‘‘Natu-ral Resources’’ chapter itself, and whichclearly does not encompass the geologicalresources and hazards that petitioners are

concerned with—sufficiently reasonable thatit can demand our deference under the Chev-ron doctrine? It could be. As we haveobserved, 346 Or. at 403 and n. 29, 213 P.3dat 1185 and n. 29, ‘‘natural resources’’ is anindefinite term that, along with its clear basisin the world of naturally occurring objects,conveys in a far more vague sense the ideathat those objects must be valuable or benefi-cial. Thus, the narrower definition now un-der discussion could reflect the commission’sconsidered determination as to which naturalfeatures of the scenic area are valuable inthat sense, and its list of phenomena thatqualify as ‘‘natural resources’’ is not inher-ently unreasonable. Neither would it neces-sarily be unreasonable that the commissionhad excluded a whole category—geologicalfeatures—from its definition of ‘‘natural re-sources.’’ The commission could rationallyconclude that many ‘‘geological resources,’’e.g., dirt qua dirt, are not valuable in and ofthemselves, and that geological features thatare valuable for a particular reason can andshould be protected as such—for example, asscenic resources or as a component of animaland plant habitat.

Our problem, however, is that we see noreal evidence of a conscious commissionchoice either way. The management planitself contains two competing definitions,both S 405of which the commission apparentlyconsiders permissible under the Act. As ourdiscussion of each definition indicates, wefind both to be permissible under Chevron.But we decline to defer to the commission,unless and until it takes some action thatreflects a considered choice between the twodefinitions, or the abandonment of one ofthem. This case is being remanded to thecommission for other reasons. We thereforealso direct that the commission on remandspecifically address which of the two defini-tions of ‘‘natural resources’’ it is relying on,preferably doing so in light of petitioners’

30. See discussion of Chevron doctrine above, 346Or. at 387–405, 213 P.3d at 1177–86.

31. ‘‘Natural areas’’ are botanically significantsites identified by the Oregon and Washington

Natural Heritage Programs under a contractwith the commission. Management Plan, Part I,ch. 3 (Natural Resources), Inventories and KeyLaws and Programs, Natural Areas.


express concerns respecting areas of geologichazard.

9. Does the management plan complywith the Scenic Area Act’s require-ment that it protect cultural resourcesfrom cumulative adverse effects?

[8] Petitioners here raise a further issuepertaining to the management plan’s treat-ment of cumulative adverse effects. Theyargue that, because the management plandoes not (in their view) provide any stan-dards or mechanism for assessing the cumu-lative effects of development on cultural re-sources, it does not and cannot satisfy theAct’s mandates, set out at 16 U.S.C.§ 544d(d)(7), (8), and (9), that provisions beincluded that require that commercial, resi-dential, and mineral resource developmenttake place without causing adverse cumula-tive effects to those resources. Petitionersagain argue that, in light of the proposal-based wording of the definition of ‘‘adverselyaffected,’’ those mandates must be read asrequiring consideration of cumulative effectsat the time each development is proposed.We reject that argument for the same reasonthat we rejected it in the context of petition-ers’ arguments about cumulative effects onnatural resources: 32 The cited mandates un-ambiguously focus on a desired result (thatdevelopment shall have no adverse effects,including adverse cumulative effects, to cul-tural resources), but they say nothing abouthow that result is to be achieved. The orderin which petitioners wish to see the adverseeffects analyses carried out is not mandatedby the Act.

S 406A question remains as to whether themanagement plan contains other provisionsthat satisfy those mandates. The commis-sion contends that a number of provisions inthe management plan speak to those man-dates. Specifically, the commission relies on:

Management Plan, Part I, ch. 2 (CulturalResources), GMA Provisions, GMA Poli-cies 5 (‘‘Cultural resource surveys, evalua-tions, assessments, and mitigation plansshall generally be conducted in consulta-tion with Indian tribal governments and

any person who submits written commentson a proposed use (interested person).’’).Management Plan, Part I, ch. 2 (CulturalResources), GMA Provisions, GMA Poli-cies 6 (Until a cultural resource survey ofthe GMA is complete, a reconnaissancesurvey shall be required for all proposeduses except the modification, expansion,replacement or reconstruction of existingbuildings and structures and proposeduses that would involve little or no grounddisturbance.).Management Plan, Part I, ch. 2 (CulturalResources), GMA Provisions, GMA Poli-cies 1 (‘‘Generally, well defined geographicareas that possess large concentrations ofcultural resources shall be designatedOpen Space.’’).Management Plan, Part II, ch. 4 (Residen-tial Land), GMA Provisions, GMA Policies,Land Use policies 1C(5) (‘‘minimum parcelsizes for land divisions shall be established,based upon,’ among other things, protec-tion of ‘cultural resources’’).Management Plan, Part II, ch. 6 (Recre-ation Designations), GMA Provisions, Pub-lic Recreation, GMA Policies 2 (Landsshall be considered highly suitable for Pub-lic Recreation designation if they possesssignificant potential for providing certainlisted public recreation opportunities, in-cluding enhancement of cultural resources,and lack ‘‘highly sensitive resources.’’).Management Plan, Part II, ch. 6 (Recre-ation Designations), GMA Provisions,Commercial Recreation, GMA Policies 2D(‘‘Lands may be considered highly suitablefor Commercial Recreation if,’’ among oth-er things, ‘‘[p]otential development on thesite would not adversely affect significantcultural resources.’’).

S 407The commission does not explain the im-port of those provisions, except to say—muchas it did in response to petitioners’ other‘‘cumulative effects’’ arguments—that themanagement plan takes a ‘‘landscape ap-proach’’ to protecting cultural resources fromadverse cumulative impact. We assume thatthe commission means that the provisionspertaining to land use designations and mini-mum parcel sizes, which set basic limitations

32. 346 Or. at 396–97, 213 P.3d at 1181–82.


on the kinds and amount of development thatmay occur in the various parts of the scenicarea, are designed to eliminate even the pos-sibility that development will cause adversecumulative effects to cultural resources.

Only the last four of the cited provisionsappear to speak to that approach. And, aswith the commission’s ‘‘landscape approach’’to adverse cumulative effects on natural re-sources, those four provisions do not appearto us to deliver what is required. In fact,collectively, the provisions regulate develop-ment on only a small part of the scenic arealands, and do not even purport to regulatesome of the land where commercial and resi-dential development is most likely to occur(lands designated for Commercial, Agricul-tural, and Forest uses). Moreover, at leasttwo of the cited provisions are unsuited tothe sort of landscape scale regulation thatthe commission proposes to use, even on thelands to which they apply: Although thecited Public Recreation policy reflects a gen-eral concern that Public Recreation landdesignations be made with an eye towardavoiding ‘‘highly sensitive resources,’’ andthe cited Residential Land Use policy pro-vides that minimum parcel size on residen-tial lands shall be ‘‘based on’’ protection ofcultural resources, neither the policies them-selves, nor any of the policies or provisionsupon which they operate, actually requiresthat development on Public Recreation orResidential land be restricted to a level thatwill preclude any adverse cumulative effectsto cultural resources.

Neither do the first two provisions cited bythe commission appear to fulfill the statutorymandates. Rather, they merely require that‘‘reconnaissance surveys’’ be performed forany proposed use that involves more than aminimal level of ground disturbance, to de-termine whether cultural resources might beaffected. Such surveys could be a S 408usefultool for identifying cultural resources thatneed protection, but they do nothing in andof themselves to require that such resourcesnot be adversely affected, either individuallyor cumulatively, by commercial, residential,or mineral resource development. Neither,as far as we can tell, are they connected toother provisions that would preclude suchadverse cumulative effects.

In sum, the provisions that the commissionhas cited to this court do not support thecommission’s claim that the managementplan precludes adverse cumulative effects tocultural resources at a landscape level: Theydo not appear to be directed toward requir-ing that commercial, residential, and mineralresource development not cause adverse cu-mulative effects to cultural resources. Nei-ther have we been able to identify, on ourown, other provisions that satisfy the statuto-ry mandate. We conclude that, with respectto adverse cumulative effects to cultural re-sources, the management plan does not com-ply with the standards set out at 16 U.S.C.§ 544d(d)(7), (8), and (9).

10. To the extent that the managementplan permits certain small scale fishprocessing operations on parcels inthe scenic area that are designated asResidential, Small Woodland, andSmall–Scale Agriculture, does it vio-late the Act’s prohibition on industri-al development outside of the scenicarea’s urban areas?

[9] Among the revisions to the manage-ment plan that the commission adopted in2004 are a number of provisions that appearunder the heading ‘‘Small Scale Fishing Sup-port and Fish Processing Operations.’’ Themost significant of those provisions provides:

‘‘Small-scale fishing support and fish pro-cessing operations in conjunction with afamily-based commercial fishing businessmay be allowed on parcels designatedGMA Residential, GMA Small Woodlandor GMA Small–Scale Agriculture, subjectto the following conditions * * *.’’

Management Plan, Part II, ch. 7 (GeneralPolicies and Guidelines), Small Scale FishingSupport and Fish Processing Operations,GMA Guidelines 1. The guideline then setsout S 409various limitations and conditions thatapply to fishing support and fish processinguse: such operations are allowed only onparcels that are contiguous with the Colum-bia River and that include a lawful dwelling;at least one permanent resident of the dwell-ing must participate in the operation; theoperation may employ only residents of the


dwelling and up to three outside employees;the operation must take place in a portion ofthe dwelling, not to exceed 25 percent of thearea of the dwelling, or in an accessory build-ing that does not exceed 2,500 square feet;and the operation shall support and processfish caught only by the residents of thedwelling and by up to three outside employ-ees. Id. The guideline also describes thefishing support and fish processing activitiesthat are allowed. Of particular relevance issection 1B of the guideline, which lists theapproved fish processing activities:

‘‘The following fish processing activitiesmay be allowed: cleaning, gutting, head-ing, and icing or freezing of fish that iscaught by the family-based commercialfishing business. Other fish processing ac-tivities shall not be allowed, including, butnot limited to, canning, smoking, salting orbrining for wholesale or retail sale.’’

Petitioners argue that the listed fish pro-cessing activities are industrial activities andthat, by permitting them to occur on Resi-dential, Small Woodland, and Small–ScaleAgricultural land, the commission has violat-ed the Act’s requirement that the manage-ment plan ‘‘prohibit industrial development 33

in the scenic area outside urban areas.’’ 16U.S.C. § 544d(d)(6).34 Petitioners rely onthe definition of ‘‘industrial uses’’ provided bythe management plan itself:

‘‘Any use of land or water primarily in-volved in:

‘‘1. Assembly or manufacture of goodsor products,

‘‘2. Processing or reprocessing of rawmaterials, processing of recyclable materi-als or agricultural products not producedwithin a constituent farm unit,

S 410‘‘3. Storage or warehousing, han-dling or distribution of manufacturedgoods or products, raw material, agricul-tural products, forest products, or recycla-ble materials for purposes other than retailsale and service, or

‘‘4. Production of electric power forcommercial purposes.’’

Management Plan, Glossary. Petitioners ar-gue that the approved fish processing activi-ties—‘‘cleaning, gutting, heading, and icingor freezing of fish’’—are industrial uses with-in the meaning of that definition, becausethey involve processing, handling, and distri-bution of raw material, i.e., fish. The com-mission responds that the fish processingactivities permitted by the revision are suffi-ciently limited that they do not qualify as‘‘industrial uses’’ as defined by the manage-ment plan and that allowing such activitieson nonurban land designations does not vio-late the Act’s requirement that ‘‘industrialdevelopment’’ be confined to urban areas.

[10, 11] We first note that, althoughagencies are bound by their own rules, weafford particular deference to agencies’ inter-pretations of those rules. Federal courtshave held that a federal agency’s construc-tion of its own regulation is controlling unlessit is ‘‘plainly erroneous or inconsistent withthe regulation.’’ Auer v. Robbins, 519 U.S.452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79(1997). Oregon courts are almost as deferen-tial to Oregon agencies’ interpretations oftheir own rules, deferring to an agency’sinterpretation of its own rule if the interpre-tation is plausible and not inconsistent withthe rule, the rule’s context, or any othersource of law. Don’t Waste Oregon Com. v.Energy Facility Siting, 320 Or. 132, 142, 881P.2d 119 (1994). Under either framework,we will defer to the commission’s interpreta-tion of the management plan as long as thatinterpretation is plausible.

Guided by that standard, we are persuadedthat the fish processing activities allowed bythe revision are so restricted that the revi-sion does not permit ‘‘industrial use,’’ as de-fined by the management plan. Under therevision, the land on which the processingactivities occur must include a dwelling, onlyresidents of the dwelling and three otherpersons may participate in the processingactivities, the processing activities may occur

33. The Act itself does not define the term ‘‘indus-trial development,’’ as it is used in 16 U.S.C.§ 544d(d)(6).

34. The Act designates 13 cities and towns withinthe scenic area as ‘‘urban areas’’ and, by refer-ence to a specified map, describes the boundariesof those urban areas. 16 U.S.C. § 544b(e).


only on a small part of the parcel S 411(eitherin a portion of the residence or in a singleaccessory building), and only fish caught bythe residents and up to three employees maybe processed. Those restrictions limit theprocessing activities to such a degree that,when individuals use their land in the waydescribed in the revision, the commissionplausibly may state that their ‘‘use’’ of theirland cannot be described as ‘‘primarily in-volved in’’ the processing of raw materials.That is all that is required in order for us todefer to the commission. The activities per-mitted by the fish processing revisions do notconstitute ‘‘industrial uses’’ as defined by themanagement plan, and the fish processingrevisions do not conflict with the Act’s ban on‘‘industrial development’’ outside urban ar-eas. The Court of Appeals correctly rejectedpetitioners’ claim of error.

11. Does the management plan violateprovisions in the Act specifying wherecommercial uses may occur, giventhat it allows large-scale commercialevents on lands zoned for Agricultur-al, Forest, Public Recreation, andResidential uses?

[12] The 2004 revisions to the manage-ment plan set out guidelines pertaining to‘‘commercial events,’’ a category of uses that‘‘include[s] weddings, receptions, parties andother small-scale gatherings that are inciden-tal and subordinate to the primary use on aparcel.’’ Management Plan, Part II, ch. 7(General Policies and Guidelines), Commer-cial Events, GMS Guidelines 1. In general,those guidelines allow commercial events onall GMA lands

‘‘except on lands designated Open Space orCommercial Forest, subject to compliancewith the following conditions and the sce-nic, cultural, natural and recreation re-source guidelines.’’

Management Plan, Part II, ch. 7 (GeneralPolicies and Guidelines), Commercial Events,GMS Guidelines 2. The conditions referred toinclude requirements that the commercial

event occur ‘‘in conjunction’’ with a lawfulwinery, tasting room, bed and breakfast,commercial use, or dwelling listed in theNational Register of Historic Places, that theevent involve no more than 100 guests, thatthe owner of the subject parcel live on theparcel and manage the use, and that S 412theowner conduct no more than 18 day-longevents each year. Id.

Petitioners argue that, insofar as the ‘‘com-mercial event’’ provisions permit a use thatself-evidently is a commercial use throughoutmost of the GMA, they are inconsistent witha provision of the Act that requires thatcommercial uses be confined to urban areasand areas designated by the commission asCommercial land. Petitioners cite 16 U.S.C.§ 544d(b)(5), which requires the commissionto

‘‘designate areas in the scenic area outsidespecial management areas used or suitablefor commercial development: Provided,That such designation shall encourage, butnot require, commercial development totake place in urban areas and shall takeinto account the physical characteristics ofthe areas in question and their geographicproximity to transportation, commercial,and industrial facilities and other ameni-ties.’’ 35

The commission responds that neither thequoted provision, nor any other provision inthe Act, requires that commercial uses occuronly in urban areas or on designated Com-mercial land. The commission contends, infact, that the quoted provision does not pro-hibit anything, but simply requires the com-mission to designate some land within thescenic area as suitable for commercial devel-opment based on the land’s physical charac-teristics and proximity to transportation andother amenities. The commission assertsthat it has fulfilled that obligation by desig-nating various lands as Commercial, Com-mercial Recreation, and Rural Center landsand by providing guidelines for the develop-ment of those lands. In making those desig-

35. In the Court of Appeals, petitioners also ar-gued that the Commercial Event provisions vio-lated 16 U.S.C. § 544d(d)(1) and (2), which re-quire the commission to include provision in themanagement plan to, respectively, ‘‘protect and

enhance agricultural lands for agricultural uses’’and ‘‘protect and enhance forest lands for forestuses.’’ Petitioners do not appear to be pursuingthat argument before this court.

1191Or.FRIENDS OF THE COL. GORGE v. COLUMBIA RIVERCite as 213 P.3d 1191 (Or. 2009)

nations, the commission adds, it has nevermade any determination that developmentthat is permitted on other designated landscannot be accompanied by incidental andsubordinate commercial uses. To the con-trary, it argues that the management planalways has S 413permitted some ancillary com-mercial uses—cottage industries, producestands and the like—in association with otherpermitted development throughout the scenicarea, except on Open Space land.

This is a classic situation in which wecannot say that either proffered constructionunquestionably is the one that Congress in-tended. Certainly, it is not beyond reason tointerpret 16 U.S.C. § 544d(b)(5), as petition-ers have, as implying a legislative intentionthat, once the commission selects areas thatare particularly suitable for commercial de-velopment, it must confine all extra-urbancommercial uses to those areas. On theother hand, the commission’s view of theprovision is more in keeping with the provi-sion’s actual words: On its face, the provisionsays nothing about confining ancillary com-mercial uses outside of urban areas to desig-nated Commercial lands.

The best case that can be made for peti-tioners is that the provision is ambiguouswith respect to the interpretive issue beforeus. And, because it is ambiguous, we mustdefer to the commission’s interpretation, aslong as it is not unreasonable. Chevron, 467U.S. at 842–43, 104 S.Ct. 2778. We do notfind it to be so: The idea that Congress didnot intend to confine all incidental, subor-dinate and, in this case, intermittent com-mercial uses to designated Commercial landis not inherently problematic. Neither arewe persuaded that any of the negative re-sults that, according to petitioners, mightarise out of the application of commission’sconstruction are so egregious that they ren-der that construction unreasonable. We con-clude that the Act does not, in fact, contain arequirement that all ancillary commercial ac-tivities occur within urban areas or areasdesignated as Commercial land. It followsthat the Commercial Event provisions arenot incompatible with the Act in the way thatpetitioners suggest. The Court of Appealscorrectly rejected petitioners’ claim of error.

Petitioners have persuaded us that the re-vised management plan is in violation of theScenic Act in a number of respects, all ofwhich we have identified in earlier parts ofthis opinion. We remand to the commissionto correct those violations by removing erro-neous provisions or by promulgating newprovisions that satisfy the Act’s require-ments.

S 414The decision of the Court of Appeals isaffirmed in part and reversed in part. Therevisions to the management plan are upheldin part and invalidated in part, and the caseis remanded to the Columbia River GorgeCommission for further proceedings.

,

346 Or. 433

FRIENDS OF THE COLUMBIA GORGE,INC., Collyn Baldwin, Claudia Curran,Eric Lichtenthaler, Phil Pizanelli, DixieStevens, Kimberlee Thorsell, Peter Thor-sell, Brian Winter and Cynthia Winter,Petitioners on Review,

and

Beverly Klock and ClairKlock, Petitioners,

v.

COLUMBIA RIVER GORGECOMMISSION, Respondent

on Review.

(CRGC No. PA–05–02; CAA131299; SC S055916).

Supreme Court of Oregon,En Banc.

Argued and submitted Oct. 29, 2008.

Decided July 16, 2009.

Background: Residents, businesses andconservation organizations filed petition toreview revised management plan adoptedby Columbia River Gorge Commissionpursuant to the Columbia River GorgeNational Scenic Area Act. The Court of

1164 or. 213 pacific reporter, 3d series on review. 679 ......1164 or. 213 pacific reporter, 3d...

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