S055722, Opinion — Friends of Columbia Gorge v. Columbia River (S055722)

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Argued and submitted October 29, 2008, decision of Court of Appeals affirmed in
part and reversed in part; revisions to management plan upheld in part and
invalidated in part, and case remanded to Columbia River Gorge Commission
for further proceedings July 16, 2009

FRIENDS OF THE COLUMBIA GORGE, INC.,
Columbia Riverkeeper, Columbia Gorge Hotel Co.,
1000 Friends of Oregon, Claudia Curran,
Eric Lichtenthaler, Jack Mills, Kate Mills,
Phil Pizanelli, Dixie Stevens, Brian Winter,
and Cynthia Winter,
Petitioners on Review,
v.
COLUMBIA RIVER GORGE COMMISSION,
Respondent on Review.
(CA A125031; SC S055722)
213 P3d 1164

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CJS, Statutes § 306.

# En Banc

On review from the Court of Appeals .*

Gary K. Kahn, of Reeves, Kahn & Hennessy, Portland,
argued the cause and filed the briefs for petitioners on review
Friends of the Columbia Gorge, Inc., Columbia Riverkeeper,
Columbia Gorge Hotel Co., Claudia Curran, Eric Lichtenthaler,
Jack Mills, Kate Mills, Phil Pizanelli, Dixie Stevens,

\* Judicial review of the 2004 revision of the management plan of the Columbia
River Gorge Commission. 215 Or App 557, 171 P3d 942 (2007).

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Brian Winter, and Cynthia Winter. With him on the briefs
was Mary Kyle McCurdy, Portland, for petitioner on review
1000 Friends of Oregon.

Jeffrey B. Litwak, White Salmon, Washington, argued the
cause and filed the brief for respondent on review.

James E. Mountain, Jr., of Harrang Long Gary Rudnick P.
C., Portland, filed the brief for amicus curiae Pacific States
Marine Fisheries Commission. With him on the brief was
Jona J. Maukonen, Portland. Also on the brief was
John Shurts, Portland, for amicus curiae NW Power and
Conservation Council.

Erin C. Lagesen, Assistant Attorney General, Salem, filed
the brief for amicus curiae State of Oregon. With her on the
brief were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.

GILLETTE, J.

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

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# GILLETTE, J.

Petitioners, who are individuals, businesses and
conservation organizations with connections to the Columbia
River Gorge, sought judicial review by the Court of Appeals of
the Columbia River Gorge Commission's (commission) 2004
revision of its management plan for the Columbia River
Gorge National Scenic Area. Before that court, petitioners
argued, in numerous assignments and subassignments of
error, that various aspects of the 2004 revision violated the
Columbia River Gorge National Scenic Area Act, 16 USC
§§ 544-544p. The Court of Appeals rejected all but one of peti-
tioners' subassignments of error. Friends of Columbia Gorge
v. Columbia River Gorge, 215 Or App 557, 171 P3d 942
(2007). We allowed petitioners' petition for review, which
challenges the various standards of review that the Court of
Appeals employed in considering petitioners' claims, as well
as a number of the Court of Appeals' substantive holdings.
For the reasons that follow, we affirm the Court of Appeals
decision in part, reverse it in part, and remand the case to the
commission for further proceedings.

Because a general understanding of the Act and its
relationship to the commission and the management plan is
necessary to an understanding of the issues in this case, we
provide the following background. In 1986, Congress passed
the Columbia River Gorge National Scenic Area Act, Pub L
99-663, §§ 2-18, 100 Stat 4274 (1986), now codified at 16 USC
§§ 544-544p (Scenic Area Act or Act). The Act states two pur-
poses: (1) to create a national scenic area in Washington and
Oregon "to protect and provide for the enhancement of the
scenic, cultural, recreational, and natural resources of the
Columbia River Gorge"; and (2) to protect and support the
economy of the area "by encouraging growth to occur in exist-
ing urban areas and by allowing future economic develop-
ment in a manner that is consistent with" the first purpose.
16 USC § 544a. The Act creates the Columbia River Gorge
National Scenic Area, § 544b, a designated area of land that
lies adjacent to the Columbia River in Oregon and Washington.
It also authorizes those two states to enter into an interstate
compact and to create a regional commission, which, in
cooperation and consultation with the United States
Secretary of Agriculture (the secretary), is charged with

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developing, implementing, and administering a manage-
ment plan for the scenic area. 16 USC §§ 544c, 544d.

The Act itself establishes a framework and a process
for developing the contemplated management plan. First, it
divides the land in the scenic area into three categories:
(1) "Special Management Areas" (SMAs), over which the
Secretary of Agriculture is to have primary responsibility;
(2) "Urban Areas," which the Act largely exempts from the
commission's control; and (3) all remaining areas, which
would come to be known as the "General Management Area"
(GMA). 16 USC §§ 544b(b), (e). Next, the Act directs the com-
mission to carry out various studies and inventories of the
features, uses, and resources of all land within the scenic
area. 16 USC § 544d(a). It then requires the commission to
use the resulting studies and inventories to designate areas
within the scenic area that are suitable for specified uses-
agriculture, forest production, open space, and commercial
and residential development. 16 USC § 544d(b). Finally, it
instructs the commission to produce a land use management
plan that incorporates those land use designations, is consis-
tent with certain specified standards (set out below), and pro-
vides specific guidelines for the adoption of land use ordi-
nances within the scenic area.1 16 USC § 544d(c).

The aforementioned "standards" essentially amount
to a requirement that the management plan include certain
protective provisions. In particular,

"[t]he management plan and all land use ordinances
and interim guidelines adopted pursuant to [the Act] shall
include provisions to:

"(1) protect and enhance agricultural lands for agri-
cultural uses and to allow, but not require, conversion of
agricultural lands to open space, recreation development or
forest lands;

"(2) protect and enhance forest lands for forest uses
and to allow, but not require, conversion of forest lands to
agricultural lands, recreation development or open spaces;

1 The secretary is charged with developing guidelines and designations, using
a similar process, for the SMA. 16 USC § 544f.

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"(3) protect and enhance open spaces;

"(4) protect and enhance public and private recreation
resources and educational and interpretive facilities and
opportunities, in accordance with the recreation assess-
ment adopted pursuant to subsection (a) of this section;

"(5) prohibit major development actions in special
management areas, except for partitions or short plats
which the Secretary determines are desirable to facilitate
land acquisitions pursuant to [this Act];

"(6) prohibit industrial development in the scenic area
outside urban areas;

"(7) require that commercial development outside
urban areas take place without adversely affecting the sce-
nic, cultural, recreation, or natural resources of the scenic
area;

"(8) require that residential development outside
urban areas take place without adversely affecting the sce-
nic, cultural, recreation, or natural resources of the scenic
area; and

"(9) require that exploration, development and pro-
duction of mineral resources, and the reclamation of lands
thereafter, take place without adversely affecting the sce-
nic, cultural, recreation, or natural resources of the scenic
area."

Id. at § 544d(d).

The commission is required to consult with federal,
state, and local governments in developing the management
plan and must conduct public hearings and solicit public com-
ment before finally adopting it. Id. at § 544d(e). Once the
commission adopts a management plan, it must submit it to
the secretary for review and concurrence. Id. at § 544d(f).
Once that concurrence has been obtained (or the commission
has overridden any objections by the secretary by a two-
thirds vote), each of the six counties within the scenic area
(three in Oregon, three in Washington) must adopt land use
ordinances that are consistent with the management plan.
Id. at § 544e.

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The management plan is subject to periodic review
and revision. Under section 544d(g), the commission is
required to review the management plan at least every ten
years "to determine whether it should be revised." As with
the original management plan, it is required to submit "any
revised management plan to the Secretary for review and
concurrence." Id.

Pursuant to the Act, Oregon and Washington
adopted the Columbia River Gorge Compact, which estab-
lished the Columbia River Gorge Commission and provided
for funding of that body. The legislatures of Oregon and
Washington ratified the compact shortly thereafter, and the
statutes reflecting that ratification appear, respectively, at
ORS 196.150 and RCW 43.97.015. Commission members
were appointed and the commission commenced work.2 In
1991, the commission completed a management plan and the
secretary concurred in that plan in 1992. Thereafter, the
management plan controlled land management decisions
within the scenic area (except in the Urban Areas).3

In 1997, the commission began the process of review-
ing the original management plan "to determine whether it
should be revised," as the Act requires. 16 USC § 544d(g). In
the initial stage of that review, which took some time, the
commission created a list of topics within the management
plan that the commission believed required revision or, at
least, further consideration. However, the commission there-
after lost much of the funding that it had depended on to
carry out its review and, therefore, decided that it should con-
fine its review to a smaller, select group of issues. Over the

2 The commission consists of 13 members-one from each of the six counties
with land that is within the scenic area's boundaries, who are appointed by the gov-
erning bodies of their respective counties; three from Oregon, who are appointed by
the Governor of Oregon; three from Washington, who are appointed by the Governor
of Washington; and one ex officio, nonvoting member, who is an employee of the
United States Forest Service and who is appointed by the Secretary of Agriculture.
16 USC § 544c(a)(1)(C).

3 Much of the day-to-day implementation of the management plan occurs at
the county level. The Act therefore requires counties within the scenic area to
adopt land use ordinances that are consistent with the management plan. 16 USC
§§ 544e(b), (c).

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next few years, the commission worked on revising the man-
agement plan with respect to those selected issues and, in
April 2004, it adopted a revised management plan4 that
incorporated the revisions.5

Following the management plan's adoption, peti-
tioners timely filed a petition for judicial review of the plan in
the Oregon Court of Appeals, as authorized by ORS 196.115.6
They argued that various aspects of the management plan
violated the requirements of the Act and also argued that the
commission's review process was incomplete because the Act
required it to review the entire management plan.

As noted, the Court of Appeals remanded the man-
agement plan to the commission for reconsideration of one
minor issue, but otherwise affirmed it. Petitioners sought
review by this court, challenging the Court of Appeals' reso-
lution of 11 separate issues. We consider those challenges in
turn, setting out additional facts that are pertinent to the
issue under consideration as to each.

4 The revised management plan and the "original" management plan are dis-
tinct plans for the purposes of this opinion. However, maintaining that distinction
can be confusing and, in any event, is unnecessary. In this opinion, because the
object of our review is the revised management plan adopted by the commission in
2004, we refer to that version (and not to the original 1992 plan) as "the manage-
ment plan" or "the plan."

The reader also should be aware that, when we refer to the "management plan"
in this opinion, we are not referring to a paper document, but to the entire body of
law that comprised the revised management plan in 2004. As far as we can tell,
that body of law was not published in a single paper document. In 2004, the com-
mission did publish a compilation of the chapters of the management plan that it
had revised, but that document did not include the many chapters of the manage-
ment plan that had not been revised, but remained in effect. The management plan
also has been amended, as provided in 16 USC § 544d(h), on many occasions since
2004, and an up-to-date version, which includes all revisions and amendments that
currently are in effect, is available online at http://www.gorgecommission.org. In
this opinion, for obvious reasons, when we cite provisions in the management plan,
we make no attempt to refer to a particular document, online or on paper, or to page
numbers therein. Instead, we simply refer to part, chapter, and provision numbers.

5 The secretary concurred in the revised management plan in August 2004.

6 The Act provides that any person adversely affected by a final action of the
commission relating to the implementation of the Act may obtain judicial review in
the state courts of Oregon and Washington. 16 USC §§ 544m(b)(4), (6)(C). ORS
196.115(2)(a) provides that, in Oregon, such review shall be in the Court of
Appeals.

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1\. Did the Court of Appeals state and apply an erro-
neous standard of review insofar as it held that, to suc-
ceed on a claim that the plan violates the Act, petition-
ers must demonstrate that the plan cannot be applied
consistently with the Act under any circumstances?

Petitioners' first three challenges pertain to stan-
dards of review that the Court of Appeals applied to petition-
ers' claims that various aspects of the management plan vio-
lated the Act. First, petitioners argue that the Court of
Appeals erred when it held that, to prevail on any of its chal-
lenges to policies and guidelines in the management plan,
petitioners "must demonstrate that the plan cannot be
applied consistently with the law under any circumstance."
Friends of Columbia Gorge, 215 Or App at 568. Petitioners
contend that, to the contrary, they need only show that the
challenged policies and guidelines depart from or contravene
a legal standard expressed or implied in the Act.

Notably, the Act itself provides no standards for
reviewing actions and orders of the commission, but appears
to leave such details to the courts that are authorized to per-
form such reviews. Federal courts generally apply the stan-
dards of review provided in the federal Administrative
Procedures Act (APA), 5 USC §§ 500-706, see, e.g., Friends of
Columbia Gorge, Inc. v. Schafer, No CV 04-1423-MO, WL
5070962 at § 4 (D Or, Nov 24, 2008) (applying 5 USC
§ 706(2)(A)), and Washington courts apply the standards of
review set out in the Washington Administrative Procedures
Act, RCW § 34.05, and common law. See, e.g., Friends of
Columbia Gorge, Inc. v. Columbia River Gorge Com'n, 126
Wash App 363, 369-70, 108 P3d 134 (2005) (demonstrating
principle). In Oregon, however, the legislature has enacted a
statute, ORS 196.115, that governs judicial review of com-
mission actions in Oregon courts. It provides that review of
final actions and orders of the commission shall be conducted,
initially, in the Court of Appeals, and that the court's review
"shall be in accordance with" various provisions of the
Oregon Administrative Procedures Act (the Oregon APA),
ORS 183.310 to 183.750, pertaining to judicial review of
orders in contested cases. ORS 196.115(2), (3)(a). Moreover,
and in addition to referencing those Oregon APA contested
case provisions, the statute somewhat redundantly spells out

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a standard of review that is almost identical to the one that
Oregon courts are required to apply under the Oregon APA to
orders in contested cases:

"(c) The court may affirm, reverse or remand the
order. If the court finds that the agency has erroneously
interpreted a provision of law and that a correct interpre-
tation compels a particular action, the court shall:

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

"(B) Remand the case to the agency for further action
under a correct interpretation of the provision of law.

"(d) The court shall remand the order to the agency if
the court finds the agency's exercise of discretion to be:

"(A) Outside the range of discretion delegated to the
agency by law;

"(B) Inconsistent with an agency rule, an officially
stated agency position or a prior agency practice, unless the
inconsistency is explained by the agency; or

"(C) Otherwise in violation of a constitutional or 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."

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

In considering the standard of review issue in the
present case, the Court of Appeals acknowledged the forego-
ing statutory standard, but noted that the standard is "less
than a perfect fit" with petitioners' challenges, because it
calls for application of the kind of review used in contested
cases, while the commission's acts under review are essen-
tially legislative in nature. Friends of Columbia Gorge, 215
Or App at 568. The court opined that petitioners' challenges
amounted to a facial challenge to the lawfulness of the man-
agement plan and concluded that, to prevail on such a claim,
petitioners "must demonstrate that the plan cannot be
applied consistently with the law under any circumstance."
Id. In support of that standard of review, the court cited
MacPherson v. DAS, 340 Or 117, 138-39, 130 P3d 308 (2006)
and United States v. Salerno, 481 US 739, 745, 107 S Ct 2095,

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95 L Ed 2d 697 (1987), as cases setting out the test for a chal-
lenge to the facial legality of an agency created rule.

However, as petitioners correctly observe, neither
MacPherson nor Salerno is authority for application of the
Court of Appeals' "not-lawful-under-any-circumstances"
standard. Both cases involved a claim that a statute was
inconsistent with a constitutional provision-in particular,
the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. Although it is true that some
authority in the federal courts supports applying that stan-
dard when reviewing an agency's regulations for inconsis-
tency with its authorizing statute,7 this court, so far as we
can determine, has never applied that standard to anything
other than a constitutional challenge to a statute.

Neither do we think that this is a case that justifies
applying that standard of review, so foreign to the adminis-
trative law of this state, to what at bottom simply are chal-
lenges to the validity of an administrative rule. In that
regard, we observe that the management plan, both in its
original and its revised form, is much like a "rule," as that
term is defined in the Oregon APA, i.e., it is "any agency
directive, standard, regulation or statement of general appli-
cability that implements, interprets or prescribes law or pol-
icy, or describes the procedure or practice requirements of
any agency." ORS 183.310(9). Moreover, the plan was
adopted and revised by the commission through a process
similar to the rulemaking process prescribed in the Oregon
APA at ORS 183.335. Although the commission is not a state
agency that is directly subject to the Oregon APA, it is clear
that petitioners' challenges to the management plan are
analogous to typical "facial" challenges to the validity of a
rule under the Oregon APA. In our view, judicial review
should proceed accordingly.

Petitioners urge this court to conduct its review
using the methodology of Planned Parenthood Assn. v. Dept.
of Human Res., 297 Or 562, 687 P2d 785 (1984). In Planned
Parenthood, this court set out the following standard for

7 See Sierra Club v. Bosworth, 510 F3d 1016, 1023-24 (9th Cir 2007) (declining
to apply the Salerno standard and discussing its inconsistent use in the federal
courts).

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reviewing similar "facial" challenges to the validity of an
administrative rule:

"In the proper sequence of analyzing the legality of action
taken by officials under delegated authority, the first ques-
tion is whether the action fell within the reach of their
authority, the question which in the case of courts is
described as 'jurisdiction.' If that is not an issue * * * the
question is whether the action was taken by procedures
prescribed by statute or regulation. Assuming that proper
procedures were followed, the next question is whether the
substance of the action, though within the scope of the
agency's or official's general authority, departed from a
legal standard expressed or implied in the particular law
being administered, or contravened some other applicable
statute."

Id. at 565 (emphasis added). We agree with petitioners that
the quoted Planned Parenthood standard is consistent with
the legislatively prescribed statutory standard at ORS
196.115(3)(c) to (e) and, particularly, with subparagraphs
ORS 196.115(3)(d)(A) and (C), which provide for remand to
the agency if the court finds the challenged action to be "out-
side the range of discretion delegated to the agency by law" or
"[o]therwise in violation of a constitutional or statutory pro-
vision." That standard, and not the different standard of
review that the Court of Appeals utilized, is the appropriate
one for petitioners' facial challenges to the lawfulness of the
management plan.

2\. Did the Court of Appeals err in holding that, when
commission actions are reviewed in Oregon courts,
the deferential standard of review set out in Chevron
USA v. Natural Res. Def. Council, 467 US 837, 104 S Ct
2778, 81 L Ed 2d 694 (1984) applies?

As noted, petitioners contend that the management
plan is inconsistent, in various respects, with the require-
ments of the Act. To assess the validity of those claims, it is
necessary to determine what the Act requires. Consequently,
our review of petitioner's claims generally will involve some
interpretation of the Act.

In interpreting the Act, we follow the methodology
that federal courts have prescribed for interpreting federal

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statutes, just as we would do in interpreting any other fed-
eral statute. Corp. of Presiding Bishop v. City of West Linn,
338 Or 453, 463, 111 P3d 1123 (2005). In general, that means
examining the text, context, and legislative history of the
statute. Id. However, there is an additional methodological
wrinkle when, as in the present case, one of the parties before
the court is the agency that has been charged with imple-
menting the statute that is to be interpreted. A long line of
federal cases, beginning with Chevron U.S.A. v. Natural Res.
Def. Council, 467 US 837, 842-44, 104 S Ct 2778, 81 L Ed 2d
694 (1984), holds that, when a federal agency has been
charged by Congress with implementing a federal statute,
courts should defer to that agency's interpretation of the stat-
ute, treating that interpretation as controlling as long as it is
reasonable. See, e.g., Nat'l Ass'n of Homebuilders v. Defenders
of Wildlife, 551 US 644, 665-67, 127 S Ct 2518, 2534, 168 L
Ed 2d 467 (2007); Barnhardt v. Walton, 535 US 212, 215, 122
S Ct 1265, 152 L Ed 2d 330 (2002); Rust v. Sullivan, 500 US
173, 184, 111 S Ct 1759, 114 L Ed 2d 233 (1991) (each stating
same rule). Although that sort of deference is foreign to the
administrative law of this state,8 we are bound to apply it in
our interpretation of federal statutes if the federal interpre-
tive methodology so demands.

The remaining methodological question in this case,
however, is whether the federal methodology would require
deference by a federal court to the commission's interpreta-
tion of the Act, given the fact, among others, that the com-
mission is not, strictly speaking, a federal agency charged by
Congress with implementing a federal law. The Court of
Appeals concluded that, although the commission is not a
federal agency, Chevron deference to its interpretations of
the Act is appropriate because the commission is "a creation
of federal law," it is authorized to implement federal law, and
"the usual rationales for deference to agency construction"
therefore should apply to its interpretations of the Act.
Friends of Columbia Gorge, 215 Or App at 570.9

" The Chevron doctrine has been widely criticized, See, e.g., Laurence H. Tribe,
I American Constitutional Law 997-1002 (3d ed 2000) (Chevron, in combination
with relaxation of nondelegation doctrine, threatens to "cede large areas of the
legal landscape to relatively unaccountable federal agencies.").

9 The court identified, as the "usual rationales" for deferring to an agency's
interpretation, the principles of "congressional delegation" and "separation of

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Petitioners argue, however, that the commission is
not a creation of federal law but, instead, is the creation of an
interstate compact that Congress authorized but did not
require Oregon and Washington to adopt. From that prem-
ise, petitioners argue that the commission is not the recipient
of delegated authority from Congress but, instead, derives its
authority from state law, insofar as Washington and Oregon
chose to create the commission and to assign to it its present
powers. Finally, petitioners observe that the Act expressly
states that the commission "shall not be considered an
agency or instrumentality of the United States for the pur-
pose of any federal law," 16 USC § 544c(a)(1)(A) (emphasis
added), including (they argue) the federal judicially created
law relating to deference to agencies' statutory constructions.

For its part, the commission argues that, even if it is
not directly a creature of federal law, the interstate compact
that created it is more federal in nature than not, insofar as it
incorporates federal law (the Act), pertains to subject matter
of national interest, and required Congress's express consent.
The commission concludes that Chevron deference therefore
is appropriate. The commission also argues that applying
Chevron deference in Oregon courts to the commission's
interpretations of the Act is desirable because it "brings a
degree of consistency and uniformity to the states' judicial
review of commission actions involving interpretation of the
federal Scenic Area Act that would not occur if the state
courts use their own state law." The commission notes, in
that regard, that federal and Washington state courts have
applied Chevron to the commission's interpretations of the
Act. Finally, the commission points to what it characterizes
as a "solid history" in federal courts of applying Chevron def-
erence to interstate compact agencies' interpretations of their
own organic statutes.10 The commission suggests that this
court should follow suit.

powers" and the agency's superior expertise with respect to the subject matter. The
court also concluded that the notice-and-comment procedures required by the Act
demonstrated that Congress intended to require deference to the commission's
interpretations. Friends of Columbia Gorge, 215 Or App at 570-77. We need not
agree with the Court of Appeals' summary of the rationales for the Chevron doc-
trine to agree that the doctrine applies to the present case.

10 The commission cites, among other cases, People of California v. Tahoe
Regional Planning Agency, 766 F2d 1308, 1313 (9th Cir 1985) (applying Chevron
deference to interstate compact agency); Seattle Master Builders v. Pacific N.W.

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The commission's last two points are unpersuasive.
First, given that Chevron is a mainstay in the federal courts,
the fact that federal courts have applied Chevron deference to
compact agencies' interpretations of federal statute may sim-
ply have been reflexive. In the absence of any explicit and
authoritative holding that all courts should defer to compact
agencies' interpretations of their (federal) organic statutes,
regardless of differences between the particular compact
agencies' powers, the review provisions in the statutes at
issue, and the reviewing courts' ordinary practices, we are
not inclined to follow the cited cases without conducting our
own analysis of the question.

The commission's argument for applying Chevron as
a means of ensuring uniformity in judicial review also is
unpersuasive. Although we agree with the commission that
variation in judicial review methodologies could undermine
uniformity of land use standards within the scenic area, such
variation appears entirely consistent with, and may even be
contemplated by, the Act. We note, in that regard, that the
Act specifically places jurisdiction to review appeals taken
from commission actions in the state courts of Washington
and Oregon, but does not specify any standard of review. One
Washington court has responded to that circumstance by
applying the standards of review set out in its own adminis-
trative procedures act when it is called upon to review a com-
mission action,11 while Oregon courts use a standard of
review that the legislature specifically adopted for review of
commission actions, now codified at ORS 196.115(3)(c) to (e).
Although we acknowledge that the interpretation of statutes
arguably is a different matter, the fact that the Act by omis-
sion creates a situation in which Oregon and Washington are
free to apply different standards of review to commission

Elec. Power, 786 F2d 1359, 1370 (9th Cir 1986) (applying Chevron deference to
Pacific Northwest Electric Power and Conservation Planning Council (an inter-
state compact agency)); and NY State Dairy Foods v. Northeast Dairy Compact, 26
F Supp 2d 249, 260, 265 (D Mass 1998) (applying Chevron deference to regional
compact agency's construction of its own authorizing statute).

11 See, e.g., Friends of Columbia Gorge v. Columbia River, 126 Wash App 363,
369-70, 108 P3d 134 (2005) ("The Act gives state courts jurisdiction over most dis-
putes * * *. Absent published procedural rules, therefore, we apply the Washington
Administrative Procedure Act, chapter 34.05 RCW.").

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actions suggests that uniform treatment may not be the
objective that Congress sought to achieve under the Act, as
the commission suggests.

In the end, we think that the applicability of
Chevron turns on a single question-whether the federal
interpretive methodology (which, as discussed, we are bound
to apply) would require it. And the answer to that question,
as it turns out, is itself a function of congressional intent: The
United States Supreme Court, which first announced the
Chevron standard, has explained the standard in terms of a
congressional intent or expectation-specifically, a congres-
sional expectation, implied from the agency's "general con-
ferred authority" and other circumstances, that the agency
will "be able to speak with the force of law when it addresses
ambiguity in the statute or fills a space in the enacted law."
United States v. Mead Corp., 533 US 218, 229, 121 S Ct 2164,
150 L Ed 2d 292 (2001); see also Smiley v. Citibank (South
Dakota), N.A., 517 US 735, 740-41, 116 S Ct 1730, 135 L Ed
2d 25 (1996) (Court accords deference to agencies under
Chevron because of a presumption that Congress, "when it
left ambiguity in a statute [that was] meant for implementa-
tion by an agency, understood that the ambiguity would be
resolved, first and foremost by the agency [rather than the
courts.]"). According to the Court, when circumstances sug-
gest that such an intent or expectation exists,

"a reviewing court has no business rejecting an agency's
exercise of its generally conferred authority to resolve a
particular statutory ambiguity simply because the agency's
chosen resolution seems unwise, but is obliged to accept the
agency's position if Congress has not previously spoken to
the point at issue and the agency's interpretation is
reasonable."

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

It follows that, to resolve whether the commission's
interpretations of the Act are entitled to Chevron deference,
we must determine whether the commission's "generally con-
ferred authority" or other aspects of the Act imply a congres-
sional expectation that the commission will "speak with the
force of law" when it addresses ambiguities and gaps in the

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statute.12 A strong indicator of such an expectation, according
to the cases, is express congressional authorization to engage
in rulemaking and adjudication with respect to the matters
under review. See, e.g., EEOC v. Arabian American Oil Co.,
499 US 244, 257, 113 L Ed 2d 274, 111 S Ct 1227 (1991) (sug-
gesting that no deference is warranted when agency is not
authorized to promulgate rules). That inference is particu-
larly strong when that authorization provides for formal
administrative procedures designed to "foster the fairness
and deliberation that should underlie a pronouncement of
such force." Mead Corp., 533 US at 230.

Applying the foregoing considerations to the present
case, it appears that, to the extent that the management plan
purports to carry out the purposes of the Act in a way that
includes resolving ambiguities in or filling in gaps in the Act,
the commission is entitled to Chevron deference. The Act
clearly contains gaps that the commission is charged with
filling. Indeed, Congress has directed the commission to
"adopt a management plan for the scenic area," which must
be based on resource inventories and land use designations
that the Act requires the commission to develop, which must
be "consistent with" certain specified statutory standards, 16
USC § 544d(c)(1), (2), and (3), and which, once adopted, will
effectively control land use actions within the scenic area, 16
USC § 544e. That would seem to be the precise sort of dele-
gation of authority that, according to Mead and similar cases,
indicates a congressional expectation that the commission
will "speak with the force of law" in filling the significant
gaps left open by the statute. Moreover, to the extent that the
Act authorizes the commission to develop and adopt a man-
agement plan (a documentary product that in every relevant
sense is a rule or a compilation of rules), requires the com-
mission to conduct public hearings and solicit public com-
ment before adopting a final management plan, 16 USC
§ 544d(e), and requires the commission to adopt and follow
other administrative procedures that would appear to be

12 Of course, Oregon courts do not operate on the same set of assumptions
about the intentions of the Oregon legislature. See generally Springfield Education
Assn. v. School Dist., 290 Or 217, 221-30, 621 P2d 547 (1980) (explaining how
authority to construe statutes is allocated between agencies and courts depending
on type of statutory term that is at issue).

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designed to foster fairness and deliberation, 16 USC
§ 544c(b),13 the commission stands well within the main-
stream of agencies whose interpretations of their organic
statutes have been deemed worthy of Chevron deference.

Petitioners argue that Chevron is a federal doctrine
that applies only to agencies and instrumentalities of the
United States, and that, whatever else it may be, the com-
mission is not a federal agency. Petitioners note, in that
regard, that the Act expressly provides that the commission
"shall not be considered an agency or instrumentality of the
United States for the purpose of any Federal Law." 16 USC
§ 544c(a)(1)(A). However, none of the federal cases that dis-
cusses and applies Chevron to agency actions appears to
focus on the agency's status as a federal agency. Although the
cases, of necessity, generally do pertain to federal agencies,
their focus is on the nature of Congress's delegation of
authority to the agency, rather than the agency's federal
status.

Petitioners also argue that the commission is not a
recipient of a congressional delegation of authority but,
instead, derives its authority from an interstate agreement
and, thus, from the two member states. Petitioners acknowl-
edge that Congress gave consent for Oregon and Washington
to enter into an interstate compact, but it notes that Congress
did not require the states to do so. Petitioners contend that,
under those circumstances, Oregon and Washington must be
deemed to have created the commission and to be the source
of its authority to develop and implement the management
plan.

We disagree. The Act reveals a far greater Congressional
role in the creation of the commission and the development of
the management plan than petitioners' argument acknow-
ledges. In addition to memorializing Congress's consent to an
interstate compact, the Act provides for the formation of an
interstate commission to administer that compact, describes

13 Under 16 USC section 544c(b), the commission must adopt regulations
"relating to administrative procedure, the making of contracts, conflicts-of-
interest, financial disclosure, open meetings of the Commission, advisory com-
mittees, and disclosure of information consistent with the more restrictive
statutory provisions of either State."

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in relatively fine detail the structure of that body and how its
members will be appointed, requires the commission to adopt
a management plan, describes the process that the commis-
sion must use for developing the management plan, and pro-
vides standards to which the resulting management plan
must adhere.14 In short, even if Oregon and Washington are
the parties who enter into the compact, it is a compact of
Congress's design. Of particular relevance here, it is
Congress-not the states-that determined what powers and
responsibilities would be delegated to the commission and
what procedures the commission must follow in carrying out
its responsibilities.

In the end, we conclude that, in 16 USC §§ 544 -
544p, Congress delegated authority to the commission that,
under the federal methodology that we are bound to apply,
implies a congressional expectation that the commission will
"speak with the force of law" when it addresses ambiguities
and gaps in the statutory scheme. The commission's interpre-
tations of the Act therefore are entitled to the level of defer-
ence that the Chevron doctrine prescribes. That means that,
if the Act is ambiguous with respect to some matter, the com-
mission's construction must be upheld, unless it is unreason-
able. Chevron, 467 US at 842-44.

## 3. Should courts defer to the commission's interpre- tations of the Act that are articulated for the first time on appeal?

As petitioners point out, a conclusion that the
Chevron doctrine applies in this case on judicial review does
not mean that any and every interpretation of the Act that

14 The Act also provides, among other things, that the secretary will have
authority over certain parts of the scenic area, 16 USC § 544f, that the Oregon
Department of Transportation will develop a plan for restoring the Old Columbia
River Highway, 16 USC § 544j, that designated rivers and streams will be subject
to restrictions set out in section 7(a) of the Wild and Scenic Rivers Act, 16 USC
§ 1278(a), 16 USC § 544k, and that the secretary and commission will provide tech-
nical assistance to the six counties in the scenic area, 16 USC § 5441. The Act also
authorizes the appropriation of federal funds for acquisition of land and for various
specified projects and sets out procedures for enforcing the provisions of the Act
and for bringing actions against the commission, the counties, and the secretary,
16 USC §§ 544m, 544n. All of those provisions are part of the interstate compact
that Congress had in mind, and Oregon and Washington had no authority or per-
mission to adopt a compact that did not contain them.

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the commission might offer to this court is entitled to defer-
ence. Federal courts do not, for example, accord Chevron def-
erence to post hoc rationalizations offered by an agency's law-
yers, when the agency itself has not articulated a position on
the issue. Bowen v. Georgetown University Hospital, 488 US
204, 212-13, 109 S Ct 468, 102 L Ed 2d 493 (1988).15 Neither
shall we. But our acceptance of that distinction in principle
does not mean that we agree with petitioners that the Court
of Appeals improperly deferred to various interpretations of
the Act that the commission articulated in its briefs. That
determination must be made on an argument-by-argument
(or interpretation-by-interpretation) basis.

## 4. Does the management plan comply with the Scenic Area Act's mandate to protect scenic resources from cumulative adverse effects?

The Scenic Area Act provides, among other things,
that the contemplated management plan "shall include pro-
visions to * * * require" that commercial, residential, and
mineral resource development occurring outside of urban
areas "take place without adversely affecting the scenic, cul-
tural, recreation, or natural resources of the scenic area." 16
USC §§ 544d(d)(7), (8), and (9) (emphasis added). For pur-
poses of those and all other provisions of the Act, "adversely
affecting" is defined as

"a reasonable likelihood of more than moderate adverse
consequences for the scenic, cultural, recreation or natural
resources of the scenic area, the determination of which is
based on

"(1) the context of a proposed action;

15 See also Investment Co. Institute v. Camp, 401 US 617, 626-28, 91 S Ct 1091,
28 L Ed 2d 367 (1971) (in determining whether Comptroller of the Currency
authorization of banks' creation and operation of investment funds violated Glass-
Steagall Act, Court would not defer to interpretation of the relevant provision
offered by Comptroller's counsel, when Comptroller itself had not expressly artic-
ulated any position at the administrative level as to the meaning and impact of that
provision). The United States Supreme Court has explained that distinction on the
ground that "'Congress has delegated to the administrative official and not to
appellate counsel the responsibility for elaborating and enforcing statutory com-
mands.'" Bowen, 488 US at 212 (quoting Investment Co. Institute, 401 US at 628).

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"(2) the intensity of a proposed action, including the mag-
nitude and duration of an impact and the likelihood of its
occurrence;

"(3) the relationship between a proposed action and other
similar actions which are individually insignificant but
which may have cumulatively significant impacts; and

"(4) proven mitigation measures which the proponent of
an action will implement as part of the proposal to reduce
otherwise significant affects to an insignificant level."

16 USC § 544(a) (emphasis added).

Based on the foregoing provisions, petitioners
argued to the Court of Appeals that the plan must include
standards that protect the gorge's scenic resources from
adverse effects, including cumulative adverse effects, caused
by commercial, residential, and mineral resources develop-
ment. Petitioners asserted that the management plan vio-
lates that requirement insofar as it contains "no standards,
guidelines, criteria, or methodology for determining what
causes cumulative adverse impacts to scenic resources, how
to measure such impacts, or how they are regulated."16

The Court of Appeals concluded, however, that

"the Act contains no provision requiring the commission to
spell out specific standards for determining, in advance,
what causes adverse cumulative impacts to scenic
resources. To the contrary, the Act makes quite clear that
what constitutes an 'adverse effect,' of which cumulative
effects are a component, is a matter determined in the con-
text of specific applications in light of their intensity, their

16 The commission's response in the Court of Appeals focused primarily on its
own good intentions. It noted that, although the management plan addressed
cumulative impacts in a number of ways, commission staff had reported that the
plan's cumulative impacts analysis could be improved and that the commission had
been determined to address the issue in the revision process. The commission
explained, however, that budget constraints had prevented it from acting on that
intention, but that it had developed a long-term plan for addressing the topic. It
concluded that it had "not abuse[d] its discretion to make no changes to this topic."

The Court of Appeals correctly rejected that argument as unresponsive to peti-
tioners' challenge: "Either the management plan, as revised, violates the Act or it
does not. The fact that the process by which the commission arrived at the final
product was a reasonable one does not alter the lawfulness-or unlawfulness, as
the case may be-of the product itself." Friends of Columbia Gorge, 215 Or App at
578. The court then supplied its own reason for rejecting petitioners' argument-
that the Act did not require the "standards" that petitioners were demanding.

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relationship with other similar actions, and any mitigation
measures that may be required. 16 USC § 544(a). The stat-
ute is unambiguous on that point. But even if that were not
so, we would arrive at the same conclusion under the def-
erential standard that Chevron requires. The commission's
reading of the Act to not require more detailed a priori stan-
dards for determining adverse cumulative effects is at least
a reasonable construction of the statute."

Friends of Columbia Gorge, 215 Or App at 586.

Petitioners argue that the Court of Appeals is wrong
about what the Act requires. They contend, first, that the Act
"expressly requires the commission to include 'standards' in
the management plan for preventing adverse effects to scenic
resources, 16 USC § 544d(d), and the Act's definition of
'adversely affect' includes cumulative impacts, 16 USC
§ 544(a)(3)." We note, respecting this argument, that the
three provisions at issue, 16 USC §§ 544d(d)(7), (8), and (9),
require the commission to include "provisions" in the man-
agement plan that "require" that commercial, residential,
and mineral resource development take place without
adversely affecting scenic resources. The requirement that
the management plan itself include such provisions is a
"standard" that the management plan must meet, but noth-
ing in the Act states that the required provisions must them-
selves take the form of "standards."

Still, we agree with petitioners that standards of
some sort are required. The relevant provisions, 16 USC
§§ 544d(d)(7), (8), and (9), direct the commission to include
provisions in the management plan that "require" that devel-
opment occur without causing more than "moderate" adverse
effects, including adverse cumulative effects, to scenic
resources. If those requirements are to be enforceable, imple-
menting agencies must have some basis for determining
when they have-or have not-been met. The management
plan must contain provisions that by some means "require"
that residential, commercial, and mineral resource develop-
ment occur without causing adverse cumulative effects to
scenic resources.17

17 In that respect, we think that the Act is unambiguous and that, as such, any
claim to deference under Chevron would be misplaced.

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The commission responds that the management
plan does contain such provisions. It points, first, to a guide-
line that provides:

"Determination of potential visual effects and compliance
with visual subordinance policies shall include considera-
tion of the cumulative effects of proposed developments."

Management Plan, Part I, ch 1 (Scenic Resources), GMA
Provisions, Key Viewing Areas, GMA Guidelines 3. The
referenced "visual subordinance policies" appear to be sum-
marized by a related policy,18 which provides, in part, that,

"[e]xcept for new production and/or development of mineral
resources, new development on lands seen from key view-
ing areas(19) shall be visually subordinate to its landscape
setting."

Management Plan, Part I, ch 1 (Scenic Resources), GMA
Provisions, Key Viewing Areas, GMA Policies 2.20 A related
guideline similarly provides:

"Each development shall be visually subordinate to its set-
ting as seen from key viewing areas."

Management Plan, Part I, ch 1 (Scenic Resources), GMA
Provisions, Key Viewing Areas, GMA Guidelines 2.

The commission also contends that the plan regu-
lates and precludes cumulative adverse effects on scenic
resources at a "landscape setting" level. It notes that the
management plan describes and maps 13 different "land-
scape settings"21 occurring in the scenic area and sets out var-
ious policies and guidelines that are directed at "maintaining
the integrity" of each of them. For example,

18 Although labeled a "policy," that statement is worded more like a directive or
guideline, and would seem to have a similar legal effect.

19 "Key viewing areas" are designated vantage points that provide "public sce-
nic viewing opportunities"-generally, important public roads, parks, and trails.
Management Plan, Part I, ch 1 (Scenic Resources), GMA Provisions, Key Viewing
Areas, GMA Policies 1; Glossary.

20 A structure or land use is "visually subordinate" to its setting if it "does not
noticeably contrast with the surrounding landscape, as viewed from a specified
vantage point." Management Plan, Glossary.

21 "Landscape settings" are "the combination of land use, landform, and vege-
tation patterns that distinguish an area in appearance and character from other
portions of the Scenic Area." Management Plan, Glossary. The landscape settings
designated in the plan include "Pastoral," "Coniferous woodland," "Oak-pine
woodland," "Grassland," "Rural residential," "Residential," "Village," "River

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"[n]ew developments shall be compatible with their land-
scape setting and maintain the integrity of that setting.
Expansion of existing developments shall be compatible
with their landscape setting and maintain the integrity of
that setting to the maximum extent possible."

Management Plan, Part I, ch 1 (Scenic Resources), GMA
Provisions, Landscape Settings, GMA Policies 1. And

"[m]aintenance of landscape settings shall be a key consid-
eration in determining minimum parcel sizes for GMA land
use designations."

Id., GMA Policies 4.

Finally, the commission observes that the 2004 revi-
sions include provisions calling for development and imple-
mentation of "scenic highway corridor strategies" for
Interstate 84 and SR 14, the two principal highways that run
through the gorge, which strategies would include design
guidelines directed at protecting scenic resources along those
corridors.22 The import of those provisions and design guide-
lines to the present "cumulative effects" issue is unclear, but

bottomlands," and "Gorge walls, canyons and wildlands." For each landscape set-
ting, the management plan provides a general description of the land uses, land-
forms, and vegetation that are typical, the types of recreational uses that are com-
patible with the setting, a recommended parcel size for new land divisions, and a
set of "design guidelines" that are to be used to achieve visual subordinance for
both new and expanding developments. The design guidelines pertain to the posi-
tioning and height of structures, the type of vegetation to be used for screening,
etc., and are often phrased in precatory, rather than mandatory, terms. See
generally Management Plan, Part I, ch 1 (Scenic Resources), GMA Provisions,
Landscape Settings.

22 The commission refers specifically to two "scenic travel corridors" policies:

"A scenic highway corridor strategy shall be developed and implemented
for Interstate 84 (I-84). The SR 14 Corridor Strategy (1996) and associated
documents shall continue to be implemented and updated as needed for
Washington State Route 14 (SR 14)."

Management Plan, Part I, ch 1 (Scenic Resources), GMA Provisions, Scenic Travel
Corridors, GMA Policies 1.

"The goals of the scenic corridor strategies shall include: 1) providing a
framework for future highway improvements and management that meet
Management Plan scenic guidelines and public transportation needs; and
2) creating design continuity for the highway corridor with the Scenic Area.
Corridor strategies shall, at a minimum, include: a) design guidelines (e.g.
materials, conceptual designs, etc.) for typical projects that are consistent with
Management Plan scenic resources provisions and b) an interdisciplinary,
interagency project planning and development process."

Id. at GMA Policies 2.

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we assume that the commission points to them as evidence
that it has developed, and will continue to develop, guidelines
designed to maintain overall scenic conditions at a certain
level along the I-84 and SR-14 corridors, thereby protecting
scenic resources along those corridors from adverse cumula-
tive effects.23

We are persuaded that at least some of the cited pro-
visions "require" that commercial, residential, and mineral
resource development take place without adversely affecting
scenic resources. In particular, the Key Viewing Areas poli-
cies and guidelines require each new development to be
"visually subordinate" to the relevant "setting" or "landscape
setting" and expressly provide that the determination of
visual subordinance must include an assessment of cumula-
tive effects. When those "key viewing areas" policies and
guidelines are read together, it is clear that the management
plan requires implementing agencies to make such a cumu-
lative impacts determination each time that they are pre-
sented with a development application, and to prohibit devel-
opment that would adversely affect scenic resources.

Petitioners' argument reflects a basic dissatisfaction
with the management plan's case-by-case approach to cumu-
lative impacts, perhaps because petitioners believe that the
responsible agencies-the counties-have not meaningfully
implemented it. But that problem-if it exists-relates to
how the counties apply the management plan, not to the
plan's consistency with the Act. We conclude that the provi-
sions in the management plan requiring planners to take
cumulative impacts into account when determining, for each
development proposal, how the visual subordinance stan-
dard can be achieved, are consistent with 16 USC
§§ 544d(d)(7), (8), and (9) and 16 USC § 544(a)-that is, the
plan contains provisions requiring that development in the
scenic area take place without causing adverse effects,
including cumulative effects, to scenic resources.

23 The commission also relies on Management Plan, Part I, ch 1 (Scenic
Resources), GMA Provisions, Landscape Settings, GMA Policies 5. However, that
policy pertains to recreational usage and, as such, does not appear to be relevant to
the issue of the management plan's compliance with the requirement that residen-
tial, commercial, and mineral resource development take place without adversely
affecting scenic resources. 16 USC §§ 544d(d)(7), (8), and (9).

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As noted, the commission also contends that certain
of the guidelines and policies in the management plan reflect
a "landscape setting" approach to the requirement that
development occur without causing adverse cumulative
effects to scenic resources. As we discuss below in analyzing a
similar question relating to adverse cumulative effects on
natural resources, such a landscape-based approach theoret-
ically could fulfill the statutory requirements that develop-
ment occur without causing adverse cumulative effects. How-
ever, we have no occasion to consider the particulars of the
commission's theory with respect to adverse cumulative
effects on scenic resources, because we already have con-
cluded that the management plan fulfills the statutory
requirements at issue insofar as it requires consideration of
adverse cumulative effects before development is permitted.
In short, we conclude that the management plan complies
with the statutory requirements at issue. The Court of
Appeals correctly rejected petitioners' claim of error in that
regard.

## 5. Is the policy that the parties identify as "GMA Scenic Resource Policy 1" inconsistent with the Act insofar as it allows development projects that will adversely affect scenic resources to go forward?

The revisions to the management plan include a sce-
nic resources policy that provides:

"Except for production and/or development of mineral
resources and disposal sites for spoil materials from public
road maintenance activities, nothing in the key viewing
areas or landscape settings guidelines in this chapter shall
be used as grounds to deny proposed uses otherwise author-
ized by the land use designation. However, the guidelines
may affect the siting, location, size, and other design fea-
tures of proposed developments, and compliance with them
is mandatory."

Management Plan, Part I, ch 1 (Scenic Resources), GMA
Provisions, Overall Scenic Provisions, GMA Policies 1.

Petitioners argue that that policy is inconsistent
with provisions in the Act-specifically, 16 USC
§§ 544d(d)(7), (8), and (9)-that require that development

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take place without adversely affecting scenic resources. Peti-
tioners contend that the policy can be read in only one way-
as requiring implementing agencies to approve proposed
developments that do not comply with the management
plan's scenic protection guidelines and that therefore
"adversely affect" scenic resources.24

The commission, in its brief to this court, appears to
accept petitioners' assessment that the challenged policy
requires agencies to approve projects that do not comply with
key viewing areas and landscape setting guidelines. How-
ever, the commission argues that petitioners are wrong in
assuming that a failure to meet key viewing area and land-
scape setting guidelines necessarily results in an adverse
impact on scenic resources. The commission notes that,
according to the Act, the determination of "adverse affect"
requires consideration of the context of a proposed action and
other factors. 16 USC § 544(a)(1). The commission concludes
that the requirement that the context of a proposal be
considered

"is important because if the context makes strict compli-
ance with the key viewing areas and landscape settings
guidelines impossible, then this policy allows some flexibil-
ity to permit agencies to approve the development-assum-
ing, of course, that it does not cause an adverse effect."

We do not accept either petitioners' or the commis-
sion's explanation of the policy. Although the first sentence of
the policy tells permitting agencies that they cannot use the
scenic guidelines as a basis for denying a proposed use, the
second sentence provides in no uncertain terms that compli-
ance with the guidelines that control siting, design, and other
conditions of use-which are designed to ensure that scenic
resources are not adversely affected-"is mandatory." The

24 Before the Court of Appeals, petitioners also argued that the commission's
staff had misinterpreted the policy in a way that violated the Act, i.e., as precluding
any denial of a proposed use based on landscape settings and key viewing areas
guidelines, even when the applicant refuses to take available steps to achieve com-
pliance with those guidelines. The Court of Appeals concluded that, insofar as that
argument pertained to a possible interpretation of the Act by the Commission, it
was not ripe for review. Friends of Columbia Gorge, 215 Or App at 576. We agree
and therefore confine our discussion to petitioners' alternative argument-that the
policy can only be read in a way that violates the Act.

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two provisions do not conflict. The second simply qualifies
what would be an absolute grant of authority in the first sen-
tence, if that sentence stood alone: Although a county cannot
deny an application for an otherwise permissible use out-
right, the applicant must accept any conditions-even dra-
conian ones-that are necessary to ensure that the develop-
ment take place without affecting scenic resources and
complies with the guidelines.25 If the applicant does not or
cannot sufficiently alter the proposal to satisfy the conditions
required by the second sentence, permission to carry out the
proposed activity must be denied. Petitioners' argument in
that respect claims too much.

## 6. Does the management plan comply with the Scenic Area Act's requirement that it protect natural resources from cumulative adverse effects?

Petitioners' argument with respect to this assign-
ment of error recalls its earlier argument that the manage-
ment plan violates the Scenic Area Act's mandate to protect
scenic resources from cumulative adverse effects. Petitioners
again rely on the definition of "adversely affect" in 16 USC
§ 544(a) (set out above, 346 Or at 385-86 and on 16 USC
§§ 544d(d)(7), (8), and (9), which call for provisions in the
management plan "requir[ing]" that commercial, residential,
and mineral resource development occurring outside of
urban areas "take place without adversely affecting the sce-
nic, cultural, recreation, or natural resources of the scenic
area." They reasonably and correctly propose that the man-
agement plan must include provisions that require that
development not cause more than moderate adverse effects,
including adverse cumulative effects, to natural resources in
the scenic area. And they argue (much as they did with
respect to the plan's treatment of scenic resources) that the
management plan does not include provisions of that sort.

25 Notable in that regard is the fact that the management plan places no limi-
tations on the conditions that counties may impose on proposed developments to
ensure that they meet the primary scenic protection requirement of visual subor-
dination to their setting. See Management Plan, Part I, ch 1 (Scenic Resources),
GMA Provisions, Key Viewing Areas, GMA Guideline 4(B) ("Conditions may be
applied to various elements of proposed developments to ensure they are visually
subordinate to their setting as seen from key viewing areas, including, but not lim-
ited to [siting, retention of existing vegetation, etc.]").

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The present inquiry differs from our previous
inquiry into the management plan's handling of cumulative
effects to scenic resources in one important respect: The chap-
ter of the management plan devoted to protection of natural
resources contains no policy or guideline that is equivalent to
the noted key viewing areas policies and guidelines, which
require that each development shall be visually subordinate
to its setting, the GMA, and which explicitly require
that determination of compliance with that visual subordi-
nance policy include consideration of cumulative effects.
Management Plan, Part I, ch 1 (Scenic Resources), GMA
Provisions, Key Viewing Areas, GMA Guidelines 2, 3. As dis-
cussed, those two guidelines, in combination, satisfy, on a
case-by-case basis, the statutory directive that the manage-
ment plan require that development take place without caus-
ing adverse cumulative effects to scenic resources. See 346 Or
at 390.

The commission agrees that, with regard to natural
resources, the management plan does not require a case-by-
case determination of whether a development causes any
adverse cumulative effect. The commission asserts, however,
as it did in the Court of Appeals, that the Act does not require
it to prevent adverse cumulative effects on natural resources
in any particular way and that it has chosen to confront the
issue using a "landscape approach" rather than through a
proposal-by-proposal examination of cumulative effects. The
commission cites ten provisions in the management plan
that, in its view, reflect that landscape approach. They are:

Management Plan, Part II, ch 1 (Agricultural Land), GMA
Provisions, Large-Scale and Small-Scale Agriculture, GMA
Policies, Land Use Policies 5C (stating that, for land desig-
nated as Agricultural Land, minimum lot sizes shall be
established that are adequate to maintain agricultural
operation and that "[t]ake into account the common field
size for crops or livestock, adjacent uses, parcel sizes in the
area, common size or economic unit for farms and ranches
in the area, the existing landscape setting, wildlife habitat,
scenic sensitivity, and other factors").

Management Plan, Part II, ch 2 (Forest Land), GMA
Provisions, GMA Policies, Land Use Policies 7 (stating that
a minimum parcel size "shall be established for the creation

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of new parcels on lands designated Small Woodland, con-
sidering the common size of forest units in the area, the
impact on management efficiency, the existing landscape
setting, wildlife habitat, and other resource factors").

Management Plan, Part II, ch 4 (Residential Land), GMA
Provisions, GMA Policies, Land Use Policies 1C (stating
that, on land designated as Residential Land, minimum
parcel sizes for land divisions shall be based on, among
other things, protection of wildlife habitat, plant habitat,
and wetlands).

Management Plan, Part II, ch 3 (Open Spaces), GMA
Provisions, GMA Policies 8 ("Those wetlands with remark-
able values, such as sensitive wildlife habitat or rare plant
species, that are susceptible to disturbance from use and
development shall be designated Open Space.").

Management Plan, Part II, ch 3 (Open Spaces), GMA
Provisions, GMA Policies 9 ("Open Space designations shall
be applied to those most significant and sensitive natural
areas that are susceptible to disturbance from use and
development.").

Management Plan, Part II, ch 3 (Open Spaces), GMA
Provisions, GMA Policies 11 ("Habitat areas of animal spe-
cies that are classified as endangered or threatened by fed-
eral or state endangered species acts or the Washington
Wildlife Commission may be designated Open Space.").

Management Plan, Part II, ch 5 (Commercial Land), GMA
Provisions, GMA Policies, Designation Policies 2 ("Areas
outside Urban Areas shall be designated as Commercial
where commercial use took place in the immediate past or
is now taking place and would not adversely affect scenic,
natural, cultural, or recreation resources.").

Management Plan, Part II, ch 6 (Recreation Designations),
GMA Provisions, Public Recreation, GMA Policies 2
("Lands shall be considered highly suitable for Public Rec-
reation designation if they possess significant potential for
providing two or more of [certain listed recreational] oppor-
tunities, are readily accessible, and lack hazards or highly
sensitive resources.").

Management Plan, Part II, ch 6 (Recreation Designations),
GMA Provisions, Commercial Recreation, GMA Policies 2C
("Lands may be considered highly suitable for Commercial
Recreation uses if [among other things] * * * [p]otential

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development on the site would not adversely affect sensi-
tive wildlife habitat or plants, wetlands, or aquatic or ripar-
ian areas. This may be achieved by either designing the
development to avoid areas containing such resources or by
applying mitigation measure that reduce effects on such
resources to less than adverse levels.").

As can be seen, three of the cited provisions regulate the
determination of minimum parcel sizes in various land use
designations, while the remaining six provisions each set out
a standard for determining whether land is suitable for a par-
ticular land use designation. The commission's explanation
of how those provisions accomplish what is required (i.e., that
development occur without adverse cumulative effects to nat-
ural resources) consists of a single sentence:

"These guidelines take a landscape approach to protecting
against cumulative adverse impact to natural resources-
through the assignment of land use designations and mini-
mum parcel sizes-i.e., pre-defining the types and amount
of development appropriate to avoid cumulative adverse
effect on natural resources."

Before we consider the validity of the commission's
landscape approach, we focus on what the Act actually
requires. Petitioners argue that, contrary to the commission's
position, the Act mandates a case-by-case approach to cumu-
lative effects. They note that the Act's definition of the term
"adversely affect" is written in terms of the effects of "a pro-
posed action," and that the determination of "adverse effect"
is to be based on, among other things, "the relationship
between a proposed action and other similar actions which
are individually insignificant but which may have cumula-
tively significant impacts." 16 USC § 544(a).

We are not persuaded by petitioners' analysis. The
relevant provisions in the act unambiguously focus on a
result-that development will have no adverse effect, includ-
ing cumulative effects, to natural resources-rather than on
any particular method for achieving that result. See 16 USC
§§ 544d(d)(7), (8), and (9). And because the statute is unam-
biguous on that point, deference to the commission's inter-
pretation of the Act is not relevant. Although the Act may
explain "adverse effect" in terms of the effects of individual

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development proposals, that does not mean that the commis-
sion could not adopt a broad preventative approach: The com-
mission might, for example, create a comprehensive system
of landscape-based regulations limiting the amount and type
of development to such a degree that adverse cumulative
effects could not occur. But, if the commission chooses to pro-
ceed in that way, the relevant provisions still must fulfill the
statutory mandate of requiring that development not cause
adverse cumulative effects to natural resources. And that, we
think, is the place where the commission's argument fails.

Certainly, some of the provisions that the commis-
sion points to are designed to ensure, or would have the effect
of ensuring, that residential, commercial, and resource devel-
opment do not adversely affect natural resources in the par-
ticular land use designations where they apply. The three
Open Space designation provisions cited by the commission
are examples. Collectively, those provisions require that land
with the most significant and sensitive natural resources be
placed in the Open Space designation. Under those provi-
sions, there is no potential, on Open Space land, for adverse
cumulative effects caused by residential, commercial, or min-
eral resource development. That is so because, on Open
Space land, no residential, commercial, or mineral resource
development is permitted at all.

The provisions pertaining to Commercial Recreation
land designation also would seem to be designed to preclude
the possibility of adverse cumulative effects on natural
resources on Commercial Recreation land. The commercial
recreation policy cited by the commission provides that land
may be designated for Commercial Recreation uses only if
"potential development on the site would not adversely affect
sensitive wildlife habitat or plants, wetlands, or aquatic or
riparian areas." That policy would not preclude cumulative
adverse effects in itself, but it must be read in light of a
related provision (not cited by the commission), which
specifies:

"Lands may be considered highly suitable for Commercial
Recreation uses if * * *

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"Potential development on the site would not have
cumulative adverse effects upon scenic, cultural, natural or
recreation resources, considering other development (exist-
ing or authorized in the management plan) in the Scenic
Area or in the vicinity of the development."

Management Plan, Part II, ch 6 (Recreation Designations),
GMA Provisions, Commercial Recreation, GMA Policies 2E.

But most of the other provisions that the commission
cites do not accomplish what the cited Open Space and
Commercial Recreation provisions do. For example, the
minimum parcel size provisions for land designated for
Agricultural or Forest use (where a significant level of resi-
dential development is permitted) merely require that wild-
life habitat (a single component of the Gorge's natural
resources) be "tak[en] into account" or "consider[ed]" when
setting the minimum parcel size. The provisions contain no
explicit or implied reference to adverse cumulative effects
and, more importantly, no requirement that decision-makers
select a minimum parcel size that eliminates any potential
for adverse effects to natural resources.

It is true that the commission makes some effort to
use land use designations and minimum parcel size deter-
minations to eliminate the potential for adverse cumulative
effects to natural resources. However, those efforts are
incomplete. For Agricultural and Forest land and for a large
portion of the land designated as Residential, there is no pro-
vision that even remotely demonstrates that the landscape-
level approach will avoid or eliminate the adverse cumulative
effects that the Act prohibits. It follows that the commission
cannot successfully argue that, on a broad landscape level,
the management plan "requires" that development occur
without causing adverse cumulative effects to natural
resources.

We already have noted (and the commission has
acknowledged) that no provision or standard requires case-
by-case analysis of the cumulative effects of commercial, res-
idential, and mineral resource development on natural
resources. Although such case-by-case review might not be
necessary if the commission had adopted adequate alterna-
tives, we are unable to discern any other provisions that

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might address the adverse cumulative effect problem. We
conclude that the management plan fails to require that res-
idential, commercial, and mineral resource development take
place without causing adverse cumulative effects to natural
resources. In that respect, it violates the Act. The Court of
Appeals erred in concluding otherwise.

7\. Does the management plan violate the Act insofar
as it allows livestock grazing, without any review of
resource impacts, on most of the land in the scenic
area?

Under the management plan, livestock grazing is
allowed "outright," i.e., without any review, on almost all
land use designations. The only exceptions are Open Space
land and "Agriculture - Special land." Management Plan,
Part II, ch 7 (General Policies and Guidelines), Uses Allowed
Outright, All Land Use Designations Except Open Space,
GMA/SMA Guidelines 1A (permitting "agricultural uses"
outright in all land designations except Open Space);
Glossary (defining "agricultural use" to include "feeding,
breeding, management and sale of livestock"). Petitioners
argue that that arrangement "violates the Act's mandate to
protect and enhance natural resources," because livestock
grazing has a high potential for adversely affecting, inter
alia, fish and wildlife habitat.

As the commission points out, petitioners posit a
general statutory mandate to "protect and enhance natural
resources" that simply does not exist. Certainly, the Act pro-
vides that the management plan must "protect and enhance
open spaces," 16 USC § 544d(d)(3), which are defined, in part,
in terms of natural resources that are present on land desig-
nated as open space, 16 USC § 544(1).26 But those natural
resources are not relevant to petitioners' argument, because,
to the extent that grazing is allowed at all on Open Space
land, it is subject to review for "compliance with guide-
Management Plan, Part II, ch 3 (Open Spaces), GMA

26 16 USC § 544(1) defines "open spaces" as "unimproved lands not designated
as agricultural or forest lands * * * and designated as open space pursuant to sec-
tion 544d of this title. Open spaces include[, among other things, fish and wildlife
habitat, ecologically significant natural areas, water areas and wetlands, etc.]."

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Provisions, GMA Guidelines, Review Uses-All Lands
Designated Open Spaces: Gorge Walls and Canyonlands 1;
Balch Lake Wetlands Area 1. The Act also provides that the
management plan must protect natural resources from
adverse effects caused by commercial, residential, and min-
eral resource uses, 16 USC §§ 544d(d)(7), (8), and (9), but it
does not establish an equivalent requirement with respect to
adverse effects caused by agricultural activities (such as
grazing).

Petitioners fall back on the fact that one of the Act's
stated purposes is "to establish a national scenic area to pro-
tect and provide for the enhancement of the scenic, cultural,
recreational, and natural resources of the Columbia River
Gorge." 16 USC § 544a(1). However, given that the Act also
purports to support and protect the economy of the gorge, 16
USC § 544a(2), that it clearly sets a high value on agricul-
tural uses, including grazing, as an important component of
that economy, 16 USC §§ 544d(b)(2) and (d)(1), and that it
sets out, in specific terms, the circumstances in which protec-
tion of natural and other resources must take precedence
over economic values,27 the broad statement of purpose at 16
USC § 544a(1) simply cannot be read as mandating protec-
tion of all natural resources in all circumstances and in every
part of the scenic area.

In short, we agree with the commission that the Act
does not require the management plan to protect all of the
scenic areas' natural resources from adverse effects caused
by agricultural uses. It follows that the commission has not
violated the Act by allowing livestock grazing operations in
most of the scenic area without prior review to determine
how those operations will affect natural resources. The Court
of Appeals did not err in rejecting that claim of error.

8\. Does the management plan violate the Act insofar
as it fails to inventory and protect geologic resources
and require avoidance of residential and commercial
development within geological hazard areas?

27 See the list of standards for the management plan set out at 16 USC
§ 544d(d).

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Petitioners observe that the management plan con-
tains no guidelines that are specifically directed at protecting
"geological resources" or avoiding "geological hazards." Peti-
tioners argue that the management plan's failure to address
those topics amounts to a violation of the Act. Petitioners
acknowledge that the Act nowhere uses the terms "geological
resources" and "geological hazard areas." They argue, how-
ever, that geological resources and hazards are "natural
resources" within the meaning of the Act and that, conse-
quently, the Act requires the management plan to inventory
and protect geological resources to the extent that it requires
the plan to inventory and protect natural resources. Petition-
ers point to several provisions of the Act as relevant to that
proposition: 16 USC § 544a(1) (purpose of Act is to "protect
and provide for the enhancement of the * * * natural
resources of the Columbia River Gorge"); 16 USC
§§ 544d(d)(7), (8), and (9) (management plan must include
provisions requiring that commercial, residential and min-
eral resource development "take place without adversely
affecting the * * * natural resources of the scenic area)
(emphasis added); 16 USC § 544d(a)(1)(A) (commission shall
complete a resource inventory documenting "all existing land
uses, natural features and limitations, * * * ") (emphasis
added); and 16 USC § 544d(c)(1) (management plan must be
"based on the results of the resource inventory developed
pursuant to subsection (a)(1) of this section").

The Court of Appeals rejected petitioners' claim, but
it did not directly decide whether "geological resources" and
"geological hazards" were "natural resources" as that term is
used in the Act. Rather, the court appears to have assumed
that geological resources and hazards were covered by the
statutory term, and then to have concluded that nothing in
the Act required the management plan to specifically address
them or any other category of natural resources. The court
explained:

"Native plants are a natural resource in the scenic area, but
that does not mean that the Act requires the management
plan to include provisions specifically addressing the pro-
tection of each and every one. Likewise, fall foliage in the
scenic area is a physical characteristic, but that does not
mean that the management plan must include provisions

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specifically pertaining to that phenomenon. If Congress
had wanted such specifics included in the commission's
management plan, all it had to do was say so."

Friends of Columbia Gorge, 215 Or App at 596.

That explanation may be correct as far as it goes, but
it does not speak to the essential question. The Act provides
that the management plan must include provisions requiring
that commercial, residential, and mineral resource develop-
ment take place without adversely affecting the scenic area's
natural resources. 16 USC §§ 544d(d)(7), (8), and (9).28 If geo-
logical resources are natural resources within the meaning of
the Act, then the management plan must include provisions
that will preclude adverse effects to those resources-
whether or not those provisions specifically identify "geologi-
cal resources" as their object. The management plan could

28 We focus here on the requirements that the management plan contain pro-
visions precluding adverse effects to natural resources. 16 USC §§ 544d(d)(7), (8),
and (9). As noted above, petitioners also rely on 16 USC § 544a(1), which states that
one of the purposes of the Act is "to establish a national scenic area to protect and
provide for the enhancement of the * * * natural resources of the Columbia River
Gorge." However, given that petitioners' claim of error focuses on supposed
omissions from the management plan, the cited statement of purpose would appear
to be irrelevant, because it does not purport to control the contents of the manage-
ment plan.

Petitioners also rely on the Act's requirements that the commission complete a
"resource inventory" documenting "natural features and limitations" and "natural
resources" in the scenic area, and that it develop land use designations that
are based, in part, on the results of those inventories. 16 USC § 544a(1)(A);
16 USC § 544d(b)(1). However, petitioners' citation to those provisions does not
appear to add anything to their argument. The commission has inventoried "geolog-
ical features" including, apparently, "hazards," see Management Plan, Introduction,
Table 1, "Resource Inventories," and it also appears to have required use of infor-
mation obtained in that inventory in making land use and minimum parcel size
designations. See, e.g., Management Plan, Part II, ch 4 (Residential Land), GMA
Provisions, Land Use Policies 1A ("Minimum parcel sizes for land divisions shall be
established, based upon[, among other things,] [a]voidance of hazards, include-
ing, but not limited to steep slopes, fire danger, and groundwater pollution.");
Management Plan, Part I, ch 4 (Recreation Resources), GMA Provisions,
Recreation Intensity Classes, GMA Policies 4 ("Land slope, road access, the pres-
ence of geologic or other hazards and the presence of significant or sensitive
resources shall be primary considerations in determining the suitability of lands
for recreation."); Management Plan, Part II, ch 3 (Open Spaces), GMA Provisions,
GMA Guidelines, Gorge Wall and Canyonlands (reflecting fact that open space des-
ignation may be based on presence of gorge walls and canyons, which are obvious
geological features of the scenic area).

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satisfy that requirement without any specific mention of geo-
logical resources by, for example, setting out a catch-all pro-
vision directed at protecting all "natural resources." But the
essential point is that the management plan must protect all
"natural resources"-whatever that term may encompass.

It follows that the first order of business, in evaluat-
ing petitioners' claim, is to determine whether geological
resources and hazards are in fact "natural resources" for pur-
poses of the Act. The Act itself does not define that term, and
the term is not one that has obvious parameters.29 In fact, the
term conveys the very kind of ambiguity that, according to
the applicable standard of review,30 might warrant deference
to the commission's reasonable construction of the term.

And here the difficulty arises. As petitioners note,
the commission has construed the term: The glossary to the
management plan defines "natural resources" to include
"naturally occurring features including land, water, air,
plants, animals (including fish), plant and animal habitat,
and scenery." That definition is sufficiently broad that, what-
ever "geological resources" and "geological hazards" might
be, they fall within it. Petitioners therefore conclude that,
because geological resources fall within the commission's
own definition of "natural resources," the commission must
include provisions to protect them in the management plan,
as the Act requires.

But there is another definition of the term "natural
resources" that appears in the management plan. The chap-
ter of the management plan that is devoted to "Natural
Resources" contains its own, narrower definition of the term:
"For this chapter, natural resources mean wetlands, streams,

29 The Act does not appear to mean the term in its most traditional sense of
naturally occurring substances that have economic value. Rather, it also includes
the additional sense that the naturally occurring features and materials are valued
for other than economic reasons. Nevertheless, the use of the word "resource"
(instead of, for example, "features") implies that its object is needed, useful, or val-
uable. See Webster's Third New Int'l Dictionary 1934 (unabridged ed 2002) (defin-
ing "resource" as "a new or a reserve source of supply or support: a fresh or addi-
tional stock available at need; something in reserve or ready if needed * * *.
[R]esource may refer to any asset or means benefitting or assisting one.").

$0 See discussion of Chevron doctrine above, 346 Or at 377-84.

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ponds and lakes, riparian areas, wildlife and wildlife habitat,
rare plants, and natural areas."31 Management Plan, Part I,
ch 3 (Natural Resources). Given that the Natural Resources
chapter is the single part of the plan that deals most directly
with the mandate that is the focus of petitioners' argument
(that natural resources be protected from adverse effects of
commercial, residential, and mineral resource development),
it is arguable that that chapter definition, and not the one
that appears in the glossary, is the one that is relevant to the
present analysis.

But is that definition of "natural resources"-the one
that appears in the "Natural Resources" chapter itself, and
which clearly does not encompass the geological resources
and hazards that petitioners are concerned with-suffi-
ciently reasonable that it can demand our deference under
the Chevron doctrine? It could be. As we have observed, 346
Or at 403 and n 29, "natural resources" is an indefinite term
that, along with its clear basis in the world of naturally occur-
ring objects, conveys in a far more vague sense the idea that
those objects must be valuable or beneficial. Thus, the nar-
rower definition now under discussion could reflect the com-
mission's considered determination as to which natural fea-
tures of the scenic area are valuable in that sense, and its list
of phenomena that qualify as "natural resources" is not
inherently unreasonable. Neither would it necessarily be
unreasonable that the commission had excluded a whole cat-
egory-geological features-from its definition of "natural
resources." The commission could rationally conclude that
many "geological resources," e.g., dirt qua dirt, are not valu-
able in and of themselves, and that geological features that
are valuable for a particular reason can and should be pro-
tected as such-for example, as scenic resources or as a com-
ponent of animal and plant habitat.

Our problem, however, is that we see no real evi-
dence of a conscious commission choice either way. The man-
agement plan itself contains two competing definitions, both

31 "Natural areas" are botanically significant sites identified by the Oregon and
Washington Natural Heritage Programs under a contract with the commission.
Management Plan, Part I, ch 3 (Natural Resources), Inventories and Key Laws and
Programs, Natural Areas.

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of which the commission apparently considers permissible
under the Act. As our discussion of each definition indicates,
we find both to be permissible under Chevron. But we decline
to defer to the commission unless and until it takes some
action that reflects a considered choice between the two defi-
nitions, or the abandonment of one of them. This case is being
remanded to the commission for other reasons. We therefore
also direct that the commission on remand specifically
address which of the two definitions of "natural resources" it
is relying on, preferably doing so in light of petitioners'
express concerns respecting areas of geological hazard.

## 9. Does the management plan comply with the Scenic Area Act's requirement that it protect cultural resources from cumulative adverse effects?

Petitioners here raise a further issue pertaining to
the management plan's treatment of cumulative adverse
effects. They argue that, because the management plan does
not (in their view) provide any standards or mechanism for
assessing the cumulative effects of development on cultural
resources, it does not and cannot satisfy the Act's mandates,
set out at 16 USC §§ 544d(d)(7), (8), and (9), that provisions
be included that require that commercial, residential, and
mineral resource development take place without causing
adverse cumulative effects to those resources. Petitioners
again argue that, in light of the proposal-based wording of
the definition of "adversely affected," those mandates must
be read as requiring consideration of cumulative effects at
the time each development is proposed. We reject that argu-
ment for the same reason that we rejected it in the context of
petitioners' arguments about cumulative effects on natural
resources:32 The cited mandates unambiguously focus on a
desired result (that development shall have no adverse
effects, including adverse cumulative effects, to cultural
resources), but they say nothing about how that result is to be
achieved. The order in which petitioners wish to see the
adverse effects analyses carried out is not mandated by the
Act.

32 346 Or at 396-97.

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A question remains as to whether the management
plan contains other provisions that satisfy those mandates.
The commission contends that a number of provisions in the
management plan speak to those mandates. Specifically, the
commission relies on:

Management Plan, Part I, ch 2 (Cultural Resources), GMA
Provisions, GMA Policies 5 ("Cultural resource surveys,
evaluations, assessments, and mitigation plans shall gen-
erally be conducted in consultation with Indian tribal gov-
ernments and any person who submits written comments
on a proposed use (interested person).").

Management Plan, Part I, ch 2 (Cultural Resources), GMA
Provisions, GMA Policies 6 (Until a cultural resource sur-
vey of the GMA is complete, a reconnaissance survey shall
be required for all proposed uses except the modification,
expansion, replacement or reconstruction of existing build-
ings and structures and proposed uses that would involve
little or no ground disturbance.).

Management Plan, Part I, ch 2 (Cultural Resources), GMA
Provisions, GMA Policies 1 ("Generally, well defined geo-
graphic areas that possess large concentrations of cultural
resources shall be designated Open Space.").

Management Plan, Part II, ch 4 (Residential Land), GMA
Provisions, GMA Policies, Land Use policies 1C(5) ("mini-
mum parcel sizes for land divisions shall be established,
based upon," among other things, protection of "cultural
resources").

Management Plan, Part II, ch 6 (Recreation Designations),
GMA Provisions, Public Recreation, GMA Policies 2 (Lands
shall be considered highly suitable for Public Recreation
designation if they possess significant potential for provid-
ing certain listed public recreation opportunities, including
enhancement of cultural resources, and lack "highly sensi-
tive resources.").

Management Plan, Part II, ch 6 (Recreation Designations),
GMA Provisions, Commercial Recreation, GMA Policies 2D
("Lands may be considered highly suitable for Commercial
Recreation if," among other things, "[p]otential develop-
ment on the site would not adversely affect significant cul-
tural resources.").

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The commission does not explain the import of those provi-
sions, except to say-much as it did in response to petitioners'
other "cumulative effects" arguments-that the manage-
ment plan takes a "landscape approach" to protecting cul-
tural resources from adverse cumulative impact. We assume
that the commission means that the provisions pertaining to
land use designations and minimum parcel sizes, which set
basic limitations on the kinds and amount of development
that may occur in the various parts of the scenic area, are
designed to eliminate even the possibility that development
will cause adverse cumulative effects to cultural resources.

Only the last four of the cited provisions appear to
speak to that approach. And, as with the commission's "land-
scape approach" to adverse cumulative effects on natural
resources, those four provisions do not appear to us to deliver
what is required. In fact, collectively, the provisions regulate
development on only a small part of the scenic area lands,
and do not even purport to regulate some of the land where
commercial and residential development is most likely to
occur (lands designated for Commercial, Agricultural, and
Forest uses). Moreover, at least two of the cited provisions
are unsuited to the sort of landscape scale regulation that the
commission proposes to use, even on the lands to which they
apply: Although the cited Public Recreation policy reflects a
general concern that Public Recreation land designations be
made with an eye toward avoiding "highly sensitive
resources," and the cited Residential Land Use policy pro-
vides that minimum parcel size on residential lands shall be
"based on" protection of cultural resources, neither the poli-
cies themselves, nor any of the policies or provisions upon
which they operate, actually requires that development on
Public Recreation or Residential land be restricted to a level
that will preclude any adverse cumulative effects to cultural
resources.

Neither do the first two provisions cited by the com-
mission appear to fulfill the statutory mandates. Rather,
they merely require that "reconnaissance surveys" be per-
formed for any proposed use that involves more than a mini-
mal level of ground disturbance, to determine whether cul-
tural resources might be affected. Such surveys could be a

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useful tool for identifying cultural resources that need protec-
tion, but they do nothing in and of themselves to require that
such resources not be adversely affected, either individually
or cumulatively, by commercial, residential, or mineral
resource development. Neither, as far as we can tell, are they
connected to other provisions that would preclude such
adverse cumulative effects.

In sum, the provisions that the commission has cited
to this court do not support the commission's claim that the
management plan precludes adverse cumulative effects to
cultural resources at a landscape level: They do not appear to
be directed toward requiring that commercial, residential,
and mineral resource development not cause adverse cumu-
lative effects to cultural resources. Neither have we been able
to identify, on our own, other provisions that satisfy the stat-
utory mandate. We conclude that, with respect to adverse
cumulative effects to cultural resources, the management
plan does not comply with the standards set out at 16 USC
§§ 544d(d)(7), (8), and (9).

10\. To the extent that the management plan permits
certain small scale fish processing operations on parcels
in the scenic area that are designated as Residential,
Small Woodland, and Small-Scale Agriculture, does it
violate the Act's prohibition on industrial develop-
ment outside of the scenic area's urban areas?

Among the revisions to the management plan that
the commission adopted in 2004 are a number of provisions
that appear under the heading "Small Scale Fishing Support
and Fish Processing Operations." The most significant of
those provisions provides:

"Small-scale fishing support and fish processing opera-
tions in conjunction with a family-based commercial fishing
business may be allowed on parcels designated GMA
Residential, GMA Small Woodland or GMA Small-Scale
Agriculture, subject to the following conditions * * *. "

Management Plan, Part II, ch 7 (General Policies and Guide-
lines), Small Scale Fishing Support and Fish Processing
Operations, GMA Guidelines 1. The guideline then sets out

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various limitations and conditions that apply to fishing sup-
port and fish processing use: such operations are allowed
only on parcels that are contiguous with the Columbia River
and that include a lawful dwelling; at least one permanent
resident of the dwelling must participate in the operation;
the operation may employ only residents of the dwelling and
up to three outside employees; the operation must take place
in a portion of the dwelling, not to exceed 25 percent of the
area of the dwelling, or in an accessory building that does not
exceed 2,500 square feet; and the operation shall support and
process fish caught only by the residents of the dwelling and
by up to three outside employees. Id. The guideline also
describes the fishing support and fish processing activities
that are allowed. Of particular relevance is section 1B of the
guideline, which lists the approved fish processing activities:

"The following fish processing activities may be allowed:
cleaning, gutting, heading, and icing or freezing of fish that
is caught by the family-based commercial fishing business.
Other fish processing activities shall not be allowed, includ-
ing, but not limited to, canning, smoking, salting or brining
for wholesale or retail sale."

Petitioners argue that the listed fish processing
activities are industrial activities and that, by permitting
them to occur on Residential, Small Woodland, and Small-
Scale Agricultural land, the commission has violated the
Act's requirement that the management plan "prohibit
industrial development33 in the scenic area outside urban
areas." 6 USC § 544d(d)(6).34 Petitioners rely on the definition
of "industrial uses" provided by the management plan itself:

"Any use of land or water primarily involved in:

"1. Assembly or manufacture of goods or products,

"2. Processing or reprocessing of raw materials, proc-
essing of recyclable materials or agricultural products not
produced within a constituent farm unit,

33 The Act itself does not define the term "industrial development," as it is used
in 16 USC § 544d(d)(6).

34 The Act designates 13 cities and towns within the scenic area as "urban
areas" and, by reference to a specified map, describes the boundaries of those urban
areas. 16 USC § 544b(e).

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"3. Storage or warehousing, handling or distribution
of manufactured goods or products, raw material, agricul-
tural products, forest products, or recyclable materials for
purposes other than retail sale and service, or

"4. Production of electric power for commercial
purposes."

Management Plan, Glossary. Petitioners argue that the
approved fish processing activities-"cleaning, gutting, head-
ing, and icing or freezing of fish"-are industrial uses within
the meaning of that definition, because they involve process-
ing, handling, and distribution of raw material, i.e., fish. The
commission responds that the fish processing activities per-
mitted by the revision are sufficiently limited that they do
not qualify as "industrial uses" as defined by the manage-
ment plan and that allowing such activities on nonurban
land designations does not violate the Act's requirement that
"industrial development" be confined to urban areas.

We first note that, although agencies are bound by
their own rules, we afford particular deference to agencies'
interpretations of those rules. Federal courts have held that a
federal agency's construction of its own regulation is control-
ling unless it is "plainly erroneous or inconsistent with the
regulation." Auer v. Robbins, 519 US 452, 461, 117 S Ct 905,
137 L Ed 2d 79 (1997). Oregon courts are almost as deferen-
tial to Oregon agencies' interpretations of their own rules,
deferring to an agency's interpretation of its own rule if the
interpretation is plausible and not inconsistent with the rule,
the rule's context, or any other source of law. Don't Waste
Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881
P2d 119 (1994). Under either framework, we will defer to the
commission's interpretation of the management plan as long
as that interpretation is plausible.

Guided by that standard, we are persuaded that the
fish processing activities allowed by the revision are so
restricted that the revision does not permit "industrial use,"
as defined by the management plan. Under the revision, the
land on which the processing activities occur must include a
dwelling, only residents of the dwelling and three other per-
sons may participate in the processing activities, the process-
ing activities may occur only on a small part of the parcel

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(either in a portion of the residence or in a single accessory
building), and only fish caught by the residents and up to
three employees may be processed. Those restrictions limit
the processing activities to such a degree that, when individ-
uals use their land in the way described in the revision, the
commission plausibly may state that their "use" of their land
cannot be described as "primarily involved in" the processing
of raw materials. That is all that is required in order for us to
defer to the commission. The activities permitted by the fish
processing revisions do not constitute "industrial uses" as
defined by the management plan, and the fish processing
revisions do not conflict with the Act's ban on "industrial
development" outside urban areas. The Court of Appeals cor-
rectly rejected petitioners' claim of error.

### 11. Does the management plan violate provisions in the Act specifying where commercial uses may occur, given that it allows large-scale commercial events on lands zoned for Agricultural, Forest, Public Recreation, and Residential uses?

The 2004 revisions to the management plan set out
guidelines pertaining to "commercial events," a category of
uses that "include[s] weddings, receptions, parties and other
small-scale gatherings that are incidental and subordinate to
the primary use on a parcel." Management Plan, Part II, ch 7
(General Policies and Guidelines), Commercial Events, GMS
Guidelines 1. In general, those guidelines allow commercial
events on all GMA lands

"except on lands designated Open Space or Commercial
Forest, subject to compliance with the following conditions
and the scenic, cultural, natural and recreation resource
guidelines."

Management Plan, Part II, ch 7 (General Policies and
Guidelines), Commercial Events, GMS Guidelines 2. The
conditions referred to include requirements that the commer-
cial event occur "in conjunction" with a lawful winery, tasting
room, bed and breakfast, commercial use, or dwelling listed
in the National Register of Historic Places, that the event
involve no more than 100 guests, that the owner of the sub-
ject parcel live on the parcel and manage the use, and that

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the owner conduct no more than 18 day-long events each
year. Id.

Petitioners argue that, insofar as the "commercial
event" provisions permit a use that self-evidently is a com-
mercial use throughout most of the GMA, they are inconsis-
tent with a provision of the Act that requires that commercial
uses be confined to urban areas and areas designated by the
commission as Commercial land. Petitioners cite 16 USC
§ 544d(b)(5), which requires the commission to

"designate areas in the scenic area outside special manage-
ment areas used or suitable for commercial development:
Provided, That such designation shall encourage, but not
require, commercial development to take place in urban
areas and shall take into account the physical characteris-
tics of the areas in question and their geographic proximity
to transportation, commercial, and industrial facilities and
other amenities."35

The commission responds that neither the quoted
provision, nor any other provision in the Act, requires that
commercial uses occur only in urban areas or on designated
Commercial land. The commission contends, in fact, that the
quoted provision does not prohibit anything, but simply
requires the commission to designate some land within the
scenic area as suitable for commercial development based on
the land's physical characteristics and proximity to transpor-
tation and other amenities. The commission asserts that it
has fulfilled that obligation by designating various lands as
Commercial, Commercial Recreation, and Rural Center
lands and by providing guidelines for the development of
those lands. In making those designations, the commission
adds, it has never made any determination that development
that is permitted on other designated lands cannot be accom-
panied by incidental and subordinate commercial uses. To
the contrary, it argues that the management plan always has

35 In the Court of Appeals, petitioners also argued that the Commercial Event
provisions violated 16 USC §§ 544d(d)(1) and (2), which require the commission to
include provision in the management plan to, respectively, "protect and enhance
agricultural lands for agricultural uses" and "protect and enhance forest lands for
forest uses." Petitioners do not appear to be pursuing that argument before this
court.

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permitted some ancillary commercial uses-cottage indus-
tries, produce stands and the like-in association with other
permitted development throughout the scenic area, except on
Open Space land.

This is a classic situation in which we cannot say
that either proffered construction unquestionably is the one
that Congress intended. Certainly, it is not beyond reason to
interpret 16 USC § 544d(b)(5), as petitioners have, as imply-
ing a legislative intention that, once the commission selects
areas that are particularly suitable for commercial develop-
ment, it must confine all extra-urban commercial uses to
those areas. On the other hand, the commission's view of the
provision is more in keeping with the provision's actual
words: On its face, the provision says nothing about confining
ancillary commercial uses outside of urban areas to desig-
nated Commercial lands.

The best case that can be made for petitioners is that
the provision is ambiguous with respect to the interpretive
issue before us. And, because it is ambiguous, we must defer
to the commission's interpretation, as long as it is not unrea-
sonable. Chevron, 467 US at 842-43. We do not find it to be so:
The idea that Congress did not intend to confine all inciden-
tal, subordinate and, in this case, intermittent commercial
uses to designated Commercial land is not inherently prob-
lematic. Neither are we persuaded that any of the negative
results that, according to petitioners, might arise out of the
application of commission's construction are so egregious
that they render that construction unreasonable. We con-
clude that the Act does not, in fact, contain a requirement
that all ancillary commercial activities occur within urban
areas or areas designated as Commercial land. It follows that
the Commercial Event provisions are not incompatible with
the Act in the way that petitioners suggest. The Court of
Appeals correctly rejected petitioners' claim of error.

Petitioners have persuaded us that the revised man-
agement plan is in violation of the Scenic Area Act in a num-
ber of respects, all of which we have identified in earlier parts
of this opinion. We remand to the commission to correct those
violations by removing erroneous provisions or by promulgat-
ing new provisions that satisfy the Act's requirements.

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