Protecting the Columbia River Gorge : A Twenty-Year Experiment in Land-Use Federalism

The Columbia River Gorge, a spectacularly beautiful canyon along the border of Oregon and Washington, has for the past two decades, been the scene of a largely unnoticed experiment in land-use federalism. In 1986, to protect the Gorge from unwise development, Congress enacted the Columbia River Gorge National Scenic Act, which authorized an interstate compact agency, the Columbia River Gorge Commission, to create a plan to protect and enhance the Gorge's scenic, cultural, recreational, and natural resource values, while encouraging development within urban areas. The Commission developed and implements this plan in conjunction with the U.S. Forest Service, which manages the 30 percent of the Gorge that is owned by the federal government.The 1986 Act and the resulting 1992 plan set in motion complex federal-interstate-state-local government relationships that have revolutionized land-use practices in the Gorge and continue to generate controversy. A considerable amount of litigation has ensued, including challenges to the constitutionality of the statute, the alleged inflexibility of the management plan, and to implementing restrictions as unconstitutional takings of private property. Most of these challenges have been rejected by the courts. But there remain a series of pending suits concerning whether state agencies must implement the statute and its plan, and whether 2004 amendments to the plan satisfy the statute.This article examines these issues with the idea that the experiment in the Columbia River Gorge may provide useful information to the management of other transboundary resources in other locations. Particularly noteworthy are the statute's opt-out provisions, enabling landowners to trigger a condemnation process in lieu of complying with the plan's most stringent restrictions on sensitive lands