S055915, Opinion — Friends of Columbia Gorge v. Columbia River (S055915)

415
Argued and submitted October 29, 2008, decision of Court of Appeals and order of
Columbia River Gorge Commission affirmed July 16, 2009
FRIENDS OF THE COLUMBIA GORGE, INC.,
Conyn Baldwin, Claudia Curran, Eric Lichtenthaler,
Phil Pizanelli, Dixie Stevens, Kimberlee Thorsen,
Peter Thorsen, Brian Winter and Cynthia Winter,
Petitioners on Review,
and
Beverly KLOCK
and Clair Klock,
Petitioners,
v.
COLUMBIA RIVER GORGE COMMISSION,
Respondent on Review.
(CRGC No. OA-06-01; CAA133281; SC S055915)
212 P3d 1243

416 	Friends of Columbia Gorge v. Columbia River (8055915)
En Banc
On review from the Court of Appeals.*
Gary K. Kahn, of Reeves, Kahn & Hennessy, Portland,
argued the cause and filed the brief for petitioners on review.
Jeffrey B. Litwak, White Salmon, Washington, argued the
cause and filed the brief for respondent on review.
GILLETTE, J.
The decision of the Court of Appeals and the order of the
Columbia River Gorge Commission are affirmed.
* Judicial review of final order of the Columbia River Gorge Commission. 218
Or App 261, 179 P3d 700 (2008).

Cite as 346 Or 415 (2009) 	417
GILLETIE, J.
This administrative law case is one of three cases
filed by the Friends of the Columbia Gorge and others
(Friends), challenging various actions taken by the Columbia
River Gorge Commission (the commission) under the Columbia
River Gorge Scenic Area Management Plan (management
plan). In this case, Friends challenges the commission's deci-
sion to reject a proposed Multnomah County land use ordi-
nance intended to implement the management plan with
respect to the treatment of historic buildings. Under the com-
mission's interpretation of the management plan, Multnomah
County did not have the range of discretion that it claimed to
have in adopting its proposed land use ordinance. On review,
the Court of Appeals concluded that the commission's inter-
pretation was entitled to judicial deference under federal
interpretive principles. Friends of Columbia Gorge v. Columbia
River (A133281), 	218 Or App 261, 	179 P3d 700 (2008)
(Friends (A133281)). We allowed Friends' petition for review
and now affirm the decision of the Court of Appeals.
The statutory, regulatory, 	and procedural back-
ground of this case is discussed in detail in the two related
cases between the same parties that this court decides today,
Friends of Columbia Gorge v. Columbia River (8055722), 346
Or 366, 213 	P3d 1164 (2009) (Friends 	(8055722)), 	and
Friends of Columbia Gorge v. Columbia River (8055916), 346
Or 433, 213 P3d 1191 (2009). We briefly summarize that
background as it is relevant here.
In 1986, Congress passed the Columbia River Gorge
National Scenic Act, 16 USC§§ 544-544p, which created the
Columbia River Gorge National Scenic Area in Oregon and
Washington. The purpose of the Act was twofold: to protect
the scenic, cultural, recreational, and natural resources of
the Columbia River Gorge, and to protect and support the
economy of the area by encouraging growth in existing urban
areas and by allowing future economic development while
protecting the area's resources. 16 USC§ 544a.
The Act authorized Oregon and Washington to enter
into an interstate compact and to create a regional agency,
the Columbia River Gorge Commission, which, in coopera-
tion and consultation with the Secretary of Agriculture of the

418 	Friends of Columbia Gorge v. Columbia River (S055915)
United States, would be charged with developing and imple-
menting a land use management plan for an area defined as
the "scenic area." 16 USC§ 544c(l); 16 USC§ 545d. The Act
established a framework within which the management plan
was to be developed, implemented, and administered, and
divided the scenic area into three kinds of subareas: urban
areas, which are not subject to scenic area regulations or the
management plan, 16 USC§ 544b(e); "special management
areas" (SMAs), which comprise more than 100,000 acres of
land within the scenic area that are deemed the most sensi-
tive, 16 USC§ 544(b); and the areas in which the remaining
land in the scenic area is located, which are referred to as
"general management areas" (GMAs). 1
The Act further provided for the adoption, by the six
Oregon and Washington counties whose territories lie in part
inside the scenic area, of local ordinances implementing the
provisions of the management plan. 16 USC § 544e(b). 2
Under 16 USC section 544e(b), the commission is required to
send copies of the management plan, and any amendments
thereto, to each county; in response, each county must,
within a specified time, submit ordinances implementing the
plan or amendment to the commission for approval. 3 The
Act further provides that the commission is required to
approve a county's ordinance unless it finds that the county's
ordinance is inconsistent 4 with the management plan. 16
USC§ 544e(b)(3). 5
1 The phrase "general management area" is not defined in the Act, but the com-
mission uses that phrase throughout the management plan to refer to the remain-
ing land in the scenic area. In addition, the statute that the Oregon legislature
enacted to implement the Act, ORS chapter 196, defines the phrase to mean "the
area within the scenic area that is not an urban area or special management area."
ORS 196.105(2).
2 The Act encouraged the counties to comply with that provision by condition-
ing their receipt of certain economic development grants on the adoption of land
use ordinances consistent with the management plan. 16 USC § 544i(c)(l).
3 In the event that a county does not submit an ordinance to the commission for
approval, the Act requires the commission to make and publish a land use ordi-
nance setting the standard for compliance with the management plan for land cov-
ered by the management plan within the county's borders. 16 USC § 544e(c). To
date, only Klickitat County in Washington State has chosen not to adopt a scenic
area ordinance.
4 As we shall discuss later in this opinion, the management plan itself provides
a standard for determining when an ordinance is "consistent" with the Management
Plan so that approval is required.
5 16 use§ 544e(b)(3) provides:

Cite as 346 Or 415 (2009) 	419
Pursuant 	to 	the 	directives 	in 	the 	Act, 	Oregon
and Washington established the 	Columbia River Gorge
Commission, which, in 1991, adopted a management plan for
the Columbia River Gorge. The Act requires a comprehensive
review of the management plan at least every ten years and
authorizes the commission to make any necessary revisions,
subject to the review and approval of the 	Secretary of
Agriculture. 16 USC § 544d(g). Accordingly, over the next few
years, the commission reviewed whether and in what ways
the management plan should be revised, and, in 2004, the
commission adopted certain revisions to the plan. 6
As noted, one purpose of the management plan is
to protect the scenic, cultural, recreational, and natural
resources of the Columbia River Gorge. This case involves
that 	part of the 	plan that deals 	with certain cultural
resources-specifically, historic buildings.
The management plan describes cultural resources
as "the evidence of past human activity that are important in
the history, archaeology, architecture, or culture of a com-
munity or region," including "historic buildings and struc-
tures." Management Plan, Part I, ch 2 (Cultural Resources).
"Historic buildings and structures," in turn, are defined as
"(A) Within ninety days after receipt of a land use ordinance, the Commission,
by majority vote including at least three members from each State, shall
approve the ordinance unless it determines the ordinance is inconsistent with
the management plan. Should the Commission fail to act within ninety days,
the ordinance shall be deemed to be approved.
"(B) If approval is denied, the Commission shall state the reasons for finding
the ordinance is inconsistent with the management plan, and shall submit to
the county suggested modifications to the ordinance to make it consistent with
the management plan.***."
6 The Act also permits the commission to amend the management plan "at any
time that conditions within the scenic area have significantly changed." 16 USC
§ 544d(h). Under that grant of authority, the commission also has amended the
management plan a number of times, and, as will be discussed in detail below, this
case concerns certain amendments to the management plan dealing with cultural
resources.
At this point, we think it is important to note that, in this opinion, when we
refer to the "management plan," we are not referring to a particular paper docu-
ment, but to the entire body oflaw that comprises the management plan, including
revisions and amendments that currently are in effect. An up-to-date version of the
management plan is available online at http://www.gorgecommission.org. In this
opinion, when we cite provisions in the management plan, we make an effort to
give sufficient information to permit the reader to find the provisions we discuss,
but we do not attempt to refer to a particular document, online or on paper, or to
any page numbers therein.

420 	Friends of Columbia Gorge v. Columbia River (8055915)
"[s]tanding 	buildings 	and 	structures 	that 	are 	at 	least
50 years old, including log cabins, barns, highways, and
wagon trails." ld. 7 The management plan provides that, if a
proposed use of land inside the GMA may affect a cultural
resource, then the cultural resource must be evaluated to
determine if it is "significant." Among other things, a cultural
resource is significant if it is included in or eligible for inclu-
sion in the National Register of Historic Places. 8 If the cul-
tural resource is determined to be significant, then an assess-
ment of the proposed use is required; and, ifthe proposed use
would have an adverse effect on the cultural resource, a "mit-
igation plan" must be prepared. That mitigation plan must
ensure that the proposed use would have no adverse effect on
significant cultural resources. Management Plan, Part I, ch 2
(Cultural Resources), GMA Provisions, GMA Policies 12-14.
The commission did not change that treatment of
historic properties when it revised the management plan in
2004. However, in December 2005, the commission adopted
and the Secretary of Agriculture approved an amendment to
7 The management plan's glossary contains more complete definitions of the
phrases "cultural resources" and "historical buildings and structures."
" Management Plan, Part I, chapter 2 (Cultural Resources), Gl\i1A Provisions,
Gl\i1A Policies, provides:
"10. If cultural resources may be affected by a proposed use, an evaluation
shall be performed to determine if they are significant. Cultural resources are
significant if one of the following criteria is satisfied:
"A. The cultural resources are included in, or eligible for inclusion in, the
National Register of Historic Places.
"The criteria for evaluating the eligibility of cultural resources forthe National
Register of Historic Places appear in the 'National Register Criteria for
Evaluation' (36 CFR 60.4). Cultural resources are eligible for the National
Register of Historic Places if they possess integrity oflocation, design, setting,
materials, workmanship, feeling, and association. In addition, they must meet
one or more of the following criteria:
"(1) Have an association with events that have made a significant contribution
to the broad patterns of the history of this region.
"(2) Have an association with the lives of persons significant in the past.
"(3) Embody the distinctive characteristics of a type, period, or method of con-
struction, or represent the work of a master, or possess high artistic values, or
represent a significant and distinguishable entity whose components may lack
individual distinction.
"(4) Yield, or may be likely to yield, information important in prehistory or his-
tory."

Cite as 346 Or 415 	421
the management plan that, among other things, added cer-
tain new provisions dealing specifically with historic build-
ings. First, the 2005 amendment added the following to the
management plan's list of GMA policies in the Cultural
Resources chapter:
"20. 	Provide incentives to protect and enhance histori-
cally significant buildings by allowing uses of such build-
ings that are compatible with their historic character and
that provide public appreciation and enjoyment of them as
cultural resources."
Management Plan, Part I, ch 2 (Cultural Resources), GMA
Provisions, GMA Policies 20. In addition, it added a new sec-
tion to the part of the management plan listing General
Policies and Guidelines, entitled "Special Uses in Historic
Buildings," which expressly permits certain commercial uses
of historic buildings. That section provides, in part:
"GMA Guidelines
"Additional Review Uses for Historic Buildings
"l. 	Properties in all GMA land use designations except
Open 	Space 	and 	Agriculture-Special 	with 	buildings
included on the National Register of Historic Places shall be
permitted to be open to the public for viewing, interpretive
displays, and an associated gift shop * * *.
"2. 	Properties in all GMA land use designations except
Open 	Space 	and 	Agriculture-Special 	with 	buildings
included on the National Register of Historic Places, and
which were former restaurants and/or inns shall be permit-
ted to re-establish these former uses***.
"3. 	Properties in all GMA land use designations except
Open 	Space 	and 	Agriculture-Special 	with 	buildings
included on the National Register of Historic Places shall be
permitted to hold commercial events * * *.
"4. 	The following additional review uses may be allowed
in all GMA land use designations except Open Space and
Agriculture-Special on a property with a building either on
or eligible for the National Register [of] Historic Places and
that was 50 years old or older as of January 1, 2006 * * *
[listing ten types of commercial activities]."

422 	Friends of Columbia Gorge v. Columbia River (8055915)
Management Plan, 	Part II, ch 	7 (General Policies and
Guidelines), 	Special 	Uses 	in 	Historic 	Buildings, 	GMA
Guidelines, Additional Review Uses for Historic Buildings
(emphasis added).
Multnomah County adopted an ordinance imple-
menting the 2005 plan amendment, including the foregoing
provisions, among others. The ordinance contains three sec-
tions that are identical in all important respects to the word-
ing of the first three "Additional Review Uses for Historic
Buildings" set out above. In the fourth, however, Multnomah
County changed the wording in one small but crucial way: it
omitted the reference to buildings "eligible for" the National
Register of Historic Places. That is, the county's ordinance
corresponding to the fourth "Additional Review Use" pro-
vided, in part:
"The following uses may be allowed as established in each
zone on a property with a building included on the National
Register of Historic Places and that was 50 years old or
older as of January 1, 2006 * * *."
The county submitted the ordinance to the commis-
sion for approval 9 and the commission held a hearing on the
matter. At that hearing, the county acknowledged that its
version of the pertinent provision of the management plan
deviated from the management plan in the way described
above, but argued that that version would provide greater
protection for protected resources than the management plan
wording itself. In its view, requiring that a building be listed
on the National Register as a prerequisite to permitting the
enumerated commercial activities would work as an incen-
tive for the applicant to list the building. Listing the building,
in turn, would demonstrate the owner's commitment to pre-
serving the structure. In addition, the tax benefits, grant eli-
gibility, and exposure resulting from listing would provide
9 The county contemporaneously offered a second version of the ordinance to
the commission, which precisely mirrored the wording in the management plan
and did not omit the reference to buildings "eligible for" listing on the National
Register of Historic Places in the fourth section. The county stated that it wished
the commission to consider and approve that second version in the event that it
decided to reject the county's preferred wording. As discussed below, the commis-
sion did reject the county's preferred wording. The commission then approved the
alternative wording.

Cite as 346 Or 415 (2009) 	423
greater protection of historic buildings than simply permit-
ting the enumerated uses on or in all historically significant
buildings, including those merely eligible for listing.
Friends appeared before the commission in support
of the county's ordinance. Friends contended that, under the
plain wording of the relevant provision of the management
plan, the county was fully entitled to limit itself to permitting
the commercial activities enumerated in the fourth section of
"Additional Review Uses" only to those historic buildings
actually on the National Register of Historic Places. Friends
noted that the first three "Additional Review Uses" set out in
Part II, chapter 7 (General Policies and Guidelines), Special
Uses in Historic Buildings, list three types of activities that
"shall be permitted" on properties with buildings listed on the
National Register of Historic Places. The county's ordinance
was required to and does permit those activities. The man-
agement plan then lists ten additional types of activities that
"may be allowed" on property with a building "either on or eli-
gible for the National Register of Historic Places." According
to Friends, the fact that the management plan uses both the
words "shall" and "may" is significant: the county is required
to permit the activities that are described in the first three
sections, but it has discretion whether to permit the activities
described in the fourth section. And, Friends reasoned,
because the county has discretion whether to allow those
activities at all, it a fortiori has the discretion to determine
the circumstances under which it will allow those activities,
including whether it will permit those activities on properties
with buildings that merely are eligible for listing, but not
actually listed, on the National Register. It follows, Friends
concluded, that the county's ordinance is consistent with the
management plan.
In 	its 	final 	order, 	the 	commission 	rejected 	the
county's preferred provision as inconsistent with the man-
agement plan. In so holding, the commission stated that,
through the process leading to the adoption of the plan
amendment at issue here, it had found that preservation and
maintenance of historic buildings is much more expensive
than the preservation and maintenance of other buildings. It
also had determined that authorizing a greater range of
income-generating uses of historically significant buildings,

424 	Friends of Columbia Gorge v. Columbia River (8055915)
and linking that income to the actual preservation of the
buildings through a 	historic building preservation plan,
would result in historically significant buildings paying for
their own preservation and maintenance. Moreover, the com-
mission observed, the management plan treats both build-
ings listed on the National Register of Historic Places and
buildings eligible for listing as equally significant cultural
resources worthy of protection. However, because it is expen-
sive, time consuming, and complicated to list a building on
the National Register and only a small percentage of histori-
cally significant buildings in the scenic area presently are
listed, to require listing as a prerequisite to permitting the
enumerated commercial uses of historic buildings would
mean that fewer landowners would choose to engage in those
commercial uses. As a result, fewer historic buildings would
be preserved and maintained with money generated by those
commercial uses. It followed, the commission reasoned, that
the county's ordinance permitting the enumerated commer-
cial uses only in (or in connection with) listed buildings would
be less protective of cultural resources than would an ordi-
nance permitting those activities on properties with build-
ings either on the National Register or eligible for listing on
the National Register, as the management plan provides.
Briefly addressing Friends' argument concerning
the range of discretion conferred by the plan amendment to
the counties, the commission concluded with the following
statement:
"Given this context, the term 'may be allowed' in [the
fourth paragraph of "Additional Review Uses for Historic
Buildings" set out in the management plan 10 ] can not per-
mit the county to add the requirement for listing on the
National Register."
Friends pursued review of that final order in the
Court of Appeals, arguing that the commission erred in con-
cluding that the county's ordinance was inconsistent with the
10 In the final order, the commission actually refers to Section 38. 7380(C) of the
county's ordinance, rather than to the pertinent provision of the management plan.
That clearly was a misstatement, which we assume, in this context, was inadver-
tent. We therefore have placed in brackets what we understand the commission to
have meant.

Cite as 346 Or 415 (2009) 	425
management plan. In that court, Friends repeated its argu-
ment that the plain wording of the management plan permits
counties to decide whether commercial activities may be
allowed on properties eligible for listing, but not yet listed, on
the National Register.11 Specifically, Friends argued that the
county correctly interpreted the phrase "may be allowed" as
granting to the county discretionary authority whether to
allow the enumerated activities, and that the county properly
exercised its discretion when it chose not to allow those activ-
ities on properties with buildings that are eligible for listing,
but not actually listed, on the National Register of Historic
Places.
As noted, the Court of Appeals agreed with the com-
mission that the management plan does not grant the county
authority to limit the uses of historic buildings in the way
that it proposed to limit those uses in the ordinance. In so
doing, the Court of Appeals rejected Friends' argument that
the management plan's use of the phrase "shall be permitted"
in the first three sections and "may be allowed" in the fourth
indicates that the county is required to allow the uses that
are described in the first three sections but has discretion
whether to allow the uses described in the fourth. According
to the Court of Appeals, Friends' argument "is predicated on
a false premise-the asserted 'diametrically different mean-
ings of "may" and "shall."'" Friends (A133281), 218 Or App
at 269. Rather, the court stated, the two words are not as dis-
tinct, and their meanings are not as concrete, as Friends con-
tends. Id. 	at 269-70. "Shall," the court noted, can mean
"may," and vice versa. Id. at 269. The court explained that
the meaning of either word depends on the context in which
the word is used, and here, in context, the court found that
the meaning is ambiguous. Id. at 270. That is, according to
the court, the interpretation offered by each side is reason-
able. In such a circumstance, the Court of Appeals was
unwilling to say that the commission's interpretation of the
management plan as not permitting the county's ordinance
was wrong. Id.
11 In its brief to the Court of Appeals, Friends also argued that the county's
approach better protects sensitive resources. Friends has abandoned that argu-
ment in this court and we do not discuss it further.

426 	Friends of Columbia Gorge v. Columbia River (8055915)
On review in this court, Friends attacks the Court of
Appeals' reasoning that the word "may" in the fourth section
is ambiguous, particularly in the context of the use of the
word "shall" in the other three sections. Friends argues that
those different words, used side by side, must have different
meanings, and, in context, it is clear that the use of the word
"may" in the fourth section means that the county has discre-
tion whether to allow the enumerated activities on properties
with historic buildings. Moreover, Friends argues, the Court
of Appeals' interpretation that the county does not have that
discretion effectively means that the county must allow the
uses enumerated in the fourth section. As we shall explain,
we agree with Friends that the Court of Appeals erroneously
found that the management plan was ambiguous as to
whether it confers discretion on a county to approve certain
uses of property, but we nonetheless agree with the Court of
Appeals' ultimate conclusion that the commission was enti-
tled to reject the county's ordinance as inconsistent with the
management plan.
Assuming for the sake of argument that, in certain
contexts, the word "may" can mean "shall" and vice versa, we
have no trouble concluding that, in the context of the man-
agement 	plan's 	"Additional 	Review 	Uses 	for 	Historic
Buildings," those words should be understood according to
their common and ordinary meanings. That is so because,
whatever the possibility for confusion or ambiguity that
might exist when either word appears alone in a statute, reg-
ulation, or other directive, when both words appear side by
side in the same section of a document, our normal interpre-
tive principles dictate that we presume that different mean-
ings are intended. See, e.g., Atkinson v. Board of Parole, 341
Or 382, 388, 143 P3d 538 (2006) ("when the legislature uses
different terms within the same statute, normally it intends
those terms to have different meanings"); Scott v. State Farm
Mutual Auto. Ins., 345 Or 146, 155, 190 P3d 372 (2008) (in
uninsured motorist legislation, the legislature's use of two
different 	terms 	to 	describe 	certain 	submissions 	by 	the
insured indicates that it intended a different meaning for
each).
As this court has stated in the statutory context, in
ordinary usage, " 'shall' create[s] a mandatory duty, while

Cite as 346 Or 415 (2009) 	427
'may' creates only authority to act." Cain v. Rijkin, 300 Or
706, 718, 717 P2d 140 (1986); see also Pendleton School Dist.
v. State of Oregon, 345 Or 596, 607, 200 P3d 133 (2009)
(although 	"shall" can 	carry different meanings, 	context
showed legislature intended to use word as a directive or a
command that states a requirement). Thus, Friends is correct
that the management plan unambiguously requires the
counties 12 to permit the uses described in the first three sec-
tions of the "Additional Review Uses for Historic Buildings,"
but also unambiguously makes the counties' authority to
allow the uses in the fourth section a discretionary one. That
is, a county "may" approve an applicant's request to engage
in one or more of the activities enumerated in the fourth sec-
tion, but it also has discretion not to approve the request.
That conclusion addresses only half of the problem,
however. We must consider how far the county's discretion-
ary authority to approve certain uses of properties extends,
as well as how it intersects with the commission's authority
to approve local ordinances. Both the Act and the manage-
ment plan make it clear that the county's authority to imple-
ment the management plan through its local ordinance is
subordinate to the commission's determination whether a
particular feature of the ordinance is inconsistent with the
management plan. As described above, the Act requires the
Commission to approve a county's ordinance "unless it deter-
mines the ordinance is inconsistent with the management
plan." 16 USC§ 544e(b)(3)(A). And the management plan, in
turn, sets out a standard for the commission's determination
of when an ordinance is "consistent" with the management
plan so that its approval is required. It provides that a county
12 In this connection, we also reject the Court of Appeals' view that the use of
the words "may" and "shall" are ambiguous in context because the management
plan uses the passive voice for the operative wording for the "Additional Review
Uses." Friends (A133281), 218 Or App at 270 ("Allowed by whom? The county? The
commission?"). Although the management plan provides that certain uses "shall be
permitted" and others "may be allowed," the meaning of those phrases is not
ambiguous. The Act and the management plan make clear that the entity respon-
sible for implementing the management plan, including deciding whether to allow
or permit uses of properties in the GMA, is the local permitting authority. Further-
more, the Act and the management plan explain who the local permitting authority
is-either the county, ifit has adopted an ordinance that was approved by the com-
mission and the Secretary of Agriculture, or the commission itself, if the county has
not done so.

428 	Friends of Columbia Gorge v. Columbia River (8055915)
ordinance may vary from the terms of the management plan
as long as the ordinance offers greater protection of scenic,
cultural, natural, and recreation resources than the plan
does:
"Counties may adopt ordinances with provisions that vary
from the policies and guidelines in the Management Plan as
long as the ordinances provide greater protection for the
scenic, cultural, natural, and recreation resources of the
Scenic Area. Notwithstanding the designation policies in
Part II of the Management Plan, the Gorge Commission
shall, upon request from a local government, apply a more
restrictive designation."
Management Plan, Part IV, ch 1 (Gorge Commission Role),
County Ordinances, Policies 1. It follows, then, that, even
though the management plan gives counties a species of dis-
cretion to approve or disapprove certain uses of historic
buildings, the commission retains the authority to review a
county's ordinance implementing the management plan,
including a county's description in an ordinance of the way in
which it will exercise its discretionary authority under the
management plan, to determine whether the ordinance "var-
ies" from the management plan, and, if it does, whether the
ordinance would be less protective ofresources and therefore
inconsistent with the management plan.
In its final order, the commission concluded, first,
that the county's proposed ordinance "varies" from the man-
agement plan, insofar as the management plan gives the
county discretionary authority to permit certain uses of
buildings that are either on or eligible for the National
Register of Historic Places, but the county's proposed ordi-
nance would limit its exercise of that discretionary authority
to those buildings that are listed on the National Register.
Then, in accordance with the management plan's county
ordinance 	policies, 	the 	Commission 	turned 	to 	consider
whether the part of the county's ordinance addressing its dis-
cretionary authority would provide greater protection of
resources than the plan's corresponding provision. As dis-
cussed above, the Commission concluded that it did not and
rejected the ordinance.

Cite as 346 Or 415 	429
Our review of the commission's orders is governed by
ORS 196.115. That statute provides, among other things,
that the court's review "shall be in accordance with" various
provisions of the Oregon Administrative Procedures Act
(APA) pertaining to judicial review of orders in contested
cases. ORS 196.115(3)(a). At the same time, ORS 196.115
essentially repeats certain provisions of the APA, spelling out
a standard of review that is almost identical to the one that
Oregon courts are required to apply to orders in contested
cases. As relevant here, ORS 196.115(3) provides:
"(c) 	The court may affirm, reverse or remand the
order. If the court finds that the agency has erroneously
interpreted a provision of law and that a correct interpre-
tation compels a particular action, the court shall** *[fol-
low one of various courses of action].
"(d) 	The court shall remand the order to the agency if
the court finds the agency's exercise of discretion to be:
"(A) 	Outside the range of discretion delegated to the
agency by law;
"(B) 	Inconsistent with an agency rule, an officially
stated agency position or a prior agency practice, unless the
inconsistency is explained by the agency; or
"(C) 	Otherwise in violation of a constitutional or stat-
utory provision.
"(e) 	The court shall set aside or remand the order if the
court finds that the order is not supported by substantial
evidence in the whole record."
In this case, Friends' argument boils down to a con-
tention that the Commission erred in concluding that the
management plan does not give counties discretion to limit
the exercise of their authority to permit certain new commer-
cial uses of historic buildings to those buildings that are
listed on the National Register. According to Friends, the
management plan does give the counties that discretion, and,
therefore, Multnomah County's ordinance is not inconsistent
with the management plan and the commission should have
approved it. We review the commission's order in this connec-
tion to determine whether the commission has "erroneously
interpreted a provision of law." ORS 196.115(3)(c). In this

430 	Friends of Columbia Gorge v. Columbia River (8055915)
case, the "provision oflaw"-the management plan-is akin
to an agency rule that the agency has itself made. 13 Ordinar-
ily, in such cases, we defer to the commission's interpretation
of its own rule, unless no reasonable reading of the rule will
sustain that interpretation. 14
The first sentence of the fourth section of the historic
buildings provision in the management plan, "Additional
Review Uses for Historic Buildings," states that "[t]he follow-
ing additional review uses may be allowed * * * on a property
with a building either on or eligible for the National Register
[of] Historic Places ***."As we have observed, that provi-
sion confers some measure of discretionary authority, and,
notwithstanding the plan's use of the passive voice, it is clear
that the counties are the entities that are to exercise that dis-
cretion. 346 Or at 427 n 12. The dispute, at this point, con-
cerns how far the counties' discretion extends. As we parse
the sentence, we see that the counties have discretion
whether to "allow" various enumerated "additional review
uses" on certain properties with historic buildings. The sen-
tence then goes on to describe the properties that are entitled
to receive that discretionary consideration: those with a build-
ing either on or eligible for the National Register of Historic
Places. The commission concluded that that part of the sen-
tence is mandatory and we agree. That is, the provision gives
the counties discretion whether to allow various uses, but it
13 In Friends (S055722), decided this date, we explained that
"the management plan, both in its original and its revised form, is much
like a 'rule' as that term is defined in the Oregon APA: i.e., it is 'any agency
directive, standard, regulation or statement of general applicability that
implements, interprets or prescribes law or policy, or describes the procedure
or practice requirements of any agency.' ORS 183.310(9). Moreover, the plan
was adopted and revised by the commission through a process that is similar to
the rulemaking process prescribed in the Oregon APA at ORS 183.335."
346 Or at 376.
14 As we observed in Friends (S055722), federal courts have held that a federal
agency's construction of its own regulation is controlling unless it is "plainly erro-
neous or inconsistent with the regulation." Auer u. Robbins, 519 US 452, 461, 117
S Ct 905, 137 L Ed 2d 79 (1997). Oregon courts are similarly deferential to Oregon
agencies' interpretations of their own rules. See Don't Waste Oregon Com. u. Energy
Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994) (court's will defer to agency's
interpretation of its own rule if the interpretation is plausible and not inconsistent
with the rule, the rule's context, or any other source oflaw). Friends (S055722), 346
Or at 410. For those reasons, we conclude that the commission's interpretation of
its "rules"-the management plan--also is entitled to deference.

Cite as 346 Or 415 (2009) 	431
requires the counties to give that discretionary consideration
on an individualized basis to properties with buildings both
on and eligible for listing on the National Register. It does not
give the counties the discretion to exclude "eligible" proper-
ties from any discretionary consideration, as the county's pre-
ferred version of its ordinance would do.
It follows from the foregoing that the commission
correctly concluded that the ordinance "varies" from the
management plan. The commission next considered whether
the ordinance provides greater protection of resources than
the management plan does. As noted, the commission deter-
mined that the county's ordinance, which effectively denies
case-by-case consideration of whether to allow the additional
uses for all properties with buildings that are eligible for list-
ing on the National Register, is less protective of resources,
for the reasons outlined in its final order and summarized
above. This court reviews a determination like that made by
the commission for abuse of discretion. 15 Friends, however,
does not argue that that determination was an abuse of the
commission's discretion. 16 Rather, Friends' only argument
before this court is that the discretion conferred on the county
by the "Additional Review Uses" section of the management
plan expressly and necessarily includes the right to craft its
ordinance in the way that it did. Because we have rejected
that argument, this dispute is at an end.
The Court of Appeals observed that the question
whether the county's ordinance is more or less protective of
resources merely reflects a policy disagreement over the best
ways to protect the scenic area. Friends (A133281), 218 Or
App at 271. So it appears. We hold that the commission did
not abuse its discretion in rejecting the county's proposed
ordinance.
15 See ORS 196.115(3)(a) (review of commission orders shall be in accordance
with the Oregon Administrative Procedures Act); ORS 196.115(3)(d) (court shall
remand the case to the commission if court finds commission's exercise of discre-
tion to be outside the range of discretion delegated to the commission by law, incon-
sistent with a rule, officially stated position or a prior practice, or otherwise in vio-
lation of a constitutional or statutory provision); ORS 183.482(8)(b) (to same
effect).
16 As noted, Friends abandoned its argument that the county's preferred ordi-
nance actually was more protective ofresources.

432 	Friends of Columbia Gorge v. Columbia River (8055915)
The decision of the Court of Appeals and the order of
the Columbia River Gorge Commission are affirmed.