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which we affectionately think of as a beast of burden (a "green" ox) intent upon . . .

A work in progress, AOCS is being organized by property owners in the Columbia River Gorge (and their friends) who are severely impacted by recent decisions of the Columbia River Gorge Commission to keep the door closed to the plan amendment application process. The door was closed despite the provision in the National Scenic Area Act [Section 6(h)--(go to page 9)] which stipulates that the Commission may amend the Management Plan at any time that (it determines) that conditions within the Scenic Area have significantly changed. We believe the Commission must allow consideration of applications "at any time" they are received; that it can't make such determinations in a vacuum; that the application process is necessary as mandated in the Act. We believe that closing the door to the application process has denied us our right to due process to have errors in the Management Plan corrected so that we may use our property in a manner which would otherwise be compliant with the Scenic Area Act and our right to pursue happiness. Our objective is to get that door re-opened. If you or someone you know may wish to join in this effort or support this cause, please contact us by clicking on the following: aocs@cascadeplanning.com. Post a message/comment on our bulletin board

Yesterday Senator Gary George of Newberg chaired an oversight hearing he described as being aimed at “gaining an understanding of the public’s perceptions of how the Gorge Commission is doing.” Other Oregon state senators on the panel included President Pro Tempore Ted Ferrioli of John Day, Senator Bill Fisher of Roseburg, Senator Rick Metsker of Welches and Senator Frank Shields of Portland. The hearing began at 1:00 p.m., at the Gorge Room of the Hood River Inn and extended well past the 6:00 p.m. scheduled close. The panel stayed until everyone had a chance to speak. As I was one of the last on the list to testify, I got to witness the entire event. And it was a terrific hearing. Rita Swyers and Bobbie Miller, two indefatigable property rights advocates, alerted hundreds of people as soon as the word of the hearing date was released. Many, many people signed up to testify about their experiences. The majority testifying, myself included, painted a very good picture of the kinds of impacts the Gorge Commission’s activities are having on landowners.

Although there were a few scattered songs of praise for the Commission, the majority in attendance was expressing frustration. Interestingly, as for Michael Lange of the Friends of the Gorge, it was “The Sounds of Silence.” Which is a commentary in and of itself. Whenever the Gorge Commission meets, he is omnipresent and quite vocal. Yesterday he chose not to speak. Why? Does he know something we don’t? Is he telling us that this hearing was not important enough to bother with? Is he saying the legislatures really don’t count? Could that be right? Is this all for naught?

A highlight of the meeting was Martha Bennett’s answer to the Chairman’s question, “Can you assure us that all private property owners will be treated fairly?” She said, yes, she could make such an assurance. I think if she actually had the power to see that landowners were treated fairly, she would be able to keep that promise. But she doesn’t have that power. She must operate under the direction of the Gorge Commission, who historically has never treated everyone fairly, and continues to treat some private landowners differently that others, as my testimony over the past several months has shown, and as the testimony from landowners from both sides of the Columbia River demonstrated throughout the hearing. This unfair treatment won’t be stopped until there is a change in the make-up of the Commission, or until there is a change in the system of governance in the Scenic Area.

Probably the most significant highlight of the afternoon was when the panel saw how difficult working with the Gorge Commission can be for one of its own state agencies--in this case, the highway department. Senator George said he could understand the frustration the rest of us have when even a state agency is entangled in what he described as an “intolerable” situation in getting projects approved. He was clearly not amused. This situation hit close to home for the panel, and a whole new perspective was manifested. Now, if only that perspective could be manifested by the Washington law-makers. A representative from the Governor’s office was in attendance, and did say she would recommend that the results of the hearing be made available to the appropriate Washington legislators. It was disappointing to learn that not a single WA legislator attended, even after being personally invited by Senator George. The majority of the testimony came from WA landowners, who should press their own elected officials to get as involved as these Oregon senators have been.

Former Scenic Area Planner Jurgen Hess (retired), who, in the past, sat with the Commission as a 13^th member representing the Secretary of Agriculture, attacked the idea of turning the Broughton mill site into a destination resort. He talked about what an ideal location Cascade Locks would be for a casino, and how Skamania Lodge has been a godsend for the town of Stevenson’s economy, but then stated that if the Broughton Landing project would be approved (two miles from the town of Bingen), “Bingen’s economy would be devastated.” That was pretty tough for one of the sitting senators to take without being challenged. I was pleased when Senator Fisher’s questioning made a mockery of such contradictory gibberish.

Testimony presented to the Oregon Senate Interim Committee on Natural Resources on August 18, 2004:

My name is Steven B. Andersen, I am the principal and owner of Cascade Planning Associates, a land use services company that has been located here in the Gorge since 1987. I live at 400 1^st Avenue, Mosier, Oregon.

I would like to address the economic impacts the Commission has with its decision-making (agenda item No. 3). And I will do this with just two examples that are representative of so many others.

For nearly five years the Commission has kept the door to the plan amendment application process closed.[1] One of my clients recently had me pull their application for a simple boundary line correction between two very disparate landscapes on my client’s parcel. The parcel has gorge walls and canyonlands formed by the basalt cliffs along the north side of the Columbia River in Underwood, Washington. The zoning of the property is split between Open Space and Small Woodland. The property contains 70 acres, all but about 9 acres of which is zoned Small Woodland. The problem is that the common zoning boundary does not follow the natural division of the property, instead it crosses over the bluff in some places and crosses woodland in others. This discrepancy effects how the land can be managed, and how it can be developed for homesites. A professional land survey was retained to provide a legal description for the natural boundary. The Commission has kept this issue from being considered at all, thus it has stopped my clients from both managing and developing the property in what would otherwise be in the best interest of the public, such as a cluster development of homesites and a remaining large tract left in resource production and wildlife habitat.

There is a provision in the management plan and the Skamania County Scenic Area Ordinance for clustering residential development in order to maximize public benefit where such benefits can be shown.[2] However, before clustering can be approved, an applicant must submit “plans specifying dwelling sites and areas of permanent, undeveloped open land.” This would seem to be a reasonable requirement and one that wouldn’t be difficult to satisfy on a conceptual basis. But the Commission interprets this provision to mean that detailed site plans with building footprints and architectural elevation drawings must be prepared and submitted for each lot before an application will even be accepted for consideration.[3]

I spoke with local Hood River architect Carl Perron about what kind of cost we might be looking at to have 4 such site plans prepared. Because the property is in view of key viewing areas (most land in the Gorge is visible from a least one key viewing area), he said in his experience more time and detail typically are required. His estimate for doing this work was quoted at being around $2800.00 per lot, or a total of $11,200.00; and that would only be for the architectural work for the cluster development application. That would not include preparation of the application itself, which would likely require the need to address other issues requiring other professional expertise, such as cultural resources, access issues, wildlife habitat, and existing land use concerns. It would also not include detailed house plans that would eventually be required before a building permit issues.[4] So my client is put in a position of spending thousands upon thousands of dollars just to see if a cluster development application might be approved. And regardless of its approval, there will be the inevitable legal challenge by the Gorge watchdogs, which will add many more thousands of dollars even before development approval is given.[5]

Another example is a client who has about the same amount of land area that is also in split zones, but instead of Small Woodland, the Open Space is adjacent to some of the most desirable and suitable commercial recreation land adjacent to the Columbia River. It was the site of one of the finalists vying for the Scenic Area Conference Center that was awarded to the Skamania Lodge site in Stevenson. Rather than recognize this valuable commercial property for what would be of tremendous good for commercial recreation activities, the Gorge Commission effectively “took” this potential away from the landowner by designated the prime building area as “Public Recreation.” It did this without first seeing the property in public ownership! And although the Commission staff told us this issue would be reviewed and addressed during plan review, it was deemed by the Commission not important enough to discuss or address. The impact of this decision caused the value of this piece of property, that at one time was appraised at $3.4 million before the Management plan was adopted, to be appraised by the very same agency for $206,000.[6] The commercial economic development value of this property is now worthless for all practical purposes. Both the people and the landowners lose.

On March 10, 2004, the Chair and Vice-Chair of the Gorge Commission wrote a letter to United States Senators and Representatives where they sought funding to authorize projects central to protecting the Gorge. Included was $275,000 for “Enhancement” projects, wherein they write: “First, the number of people who recreate in the National Scenic Area has increased dramatically, and now includes visitors from every state and over 50 countries each year. Second, new sports—such as kite boarding and ‘paddling’—have greatly expanded. The Commission needs to update its assessment and plans for recreational facilities to meet the needs of our expanded and new users and simultaneously protect the health of the Gorge and the quality of the recreational experience.”[7] This is the very same Commission that has virtually taken away the potential for private landowners to utilize their property to meet this very demand that they seek more funding to assess. There is a complete disconnect between what the Commission could achieve without funding and what it seeks funding to do. This is the culture of the Commission for governing, protecting and enhancing this area. It doesn’t work. Historically it has never shown to have worked in other systems of government, and I don’t believe it ever will.

All of this activity has direct impacts on Gorge economics. Land that would otherwise be available for homesites and economic activities that could be developed in ways which could assure scenic protection and resource production are virtually prohibited from utilizing the very tools that the management plan and the Act specify to promote the public good. The result is either the land is developed at exorbitant costs which few can afford, or the land is segregated into large blocks and sold to those few who can afford large acreage estates. These people typically are those who make the large donations to the Gorge “watchdogs.” So we end up with the absurd situation where the Regional Forester writes the concurrence on the management plan her own agency was instrumental in writing.

The Gorge Commission is causing the culture of this area to change, and over a long period of time, I believe it will become a very different place with very different values. These are not the values of the founders of our country, like Thomas Paine who coined the name of our country and wrote Common Sense to promote the creation of the ‘United States’ as a free republic to assure economic and personal freedom. I wrote a fictional analogy of the Gorge Commission entitled “John the Breadmaker,” which presents a snapshot of what it is like living and working in the Gorge under the authority of an unelected commission. I am attaching that story, along with other written material and testimony I have prepared that address the problems that we are forced to deal with here on a daily basis.

Despite what some will argue, you can have gorge protection while simultaneously enhancing the economy of this area. Not only is it possible, it is the stated two-part purpose of the Scenic Area Act. We have waited too long for economic enhancement to take play its part in this drama.

We need your help and are very pleased that you are listening to us. Thank you for being here.

My name is Steven B. Andersen. I am a consulting land use planner and principal of Cascade Planning Associates, a land use services company in the Columbia Gorge since 1987, currently living in Mosier, Oregon. I also belong to an association of people who advocate the exercise of common sense in land use planning here in the Gorge. We call ourselves “Advocates of Common Sense” or AOCS (“ox”) for short. We have a website at www.AdvocatesOfCommonSense.com and a bulletin board at www.advocates-of-common-sense.com. Our mascot is a “green” ox, not a “blue” ox, which is to acknowledge that we all share the belief that gorge protection and economic development aren’t mutually exclusive. For those of us who live here in the Gorge, we can’t have one without the other. It is different for those who don’t live here. For them, economic development in the Gorge is not essential. They can support gorge protection without economic development, and indeed, some of them have banded together to promote that objective. That may be suitable for a national park or a national forest, where the ownership is exclusively public, but that objective is contrary to a national scenic area which was formed to achieve the multiple objectives of gorge protection and economic enhancement. The regulatory process administering the scenic area act was hijacked by those who want to nationalize this area. The management plan that was adopted in 1992, was written by those who wish to turn the clock back on the economy and culture of the Gorge. Should this objective be fulfilled, the only people who will be found in this beautiful part of the world will be the wealthy who can afford to live and vacation here, and the others who will have to commute here from afar to serve those more fortunate.

I came to this meeting today after celebrating my grandson Emmett Rashleigh’s third birthday with him and his family this morning. Being a grandfather has really changed my perspective on what is important. He and his younger brother’s futures all of a sudden become more important to me than just about anything else in this world. The quality of their futures depend largely on where they will be able to live and work. We grandparents need to see that there will be both a clean environment and a healthy economy, regardless of where our grandchildren live. Thus, protecting our economy is equally as important as protecting the environment. We who live and work here can’t sacrifice one for the other.

We can’t protect our economy while allowing land uses and activities that harm our neighbors. And we can’t protect our environment while taking away property, and curtailing our pursuit of happiness. But this very thing is underway here in the Columbia Gorge. There is a gorge commission of unelected members who pass laws that take away property and our ability to pursue happiness that is otherwise commonplace for Americans in other places of the United States. What should be the subject of prosecution of violations of constitutional rights, is business as usual here in the Gorge. But because we are a small population, a minority amid a vast majority, we are completely at the mercy of unelected rule-makers and enforcers.

One of my heroes, Thomas Paine, the author of “Common Sense” and the “The American Crisis“ series warned that “Representatives of majorities acting in the name of the people could oppress minorities.” His answer to the problem of representative governments becoming despotic tyrannies was judicial scrutiny to assure the legislative body governs within the limits of the constitution.[8] In our case, the constitution is the Scenic Area Act, the governing body is the Gorge Commission, the offending legislation is the 1992 Gorge Management Plan and its “incomplete” revision of 2004.[9] Of course a significant difference is that we don’t get the benefit having a representative system of government. The Gorge Commission is responsible to no-one at all. It has arbitrarily deemed the revised management plan compliant with the Act. Region 6 Forester Linda Goodman just recently agreed with her National Scenic Area Manager Daniel Harkenrider (the Gorge Commissions 13^th member), that the revisions made by the Commission are consistent with the Scenic Area Act. This is the very same plan than in 1992 designed private property with “Public Recreation” land use designations and thereafter required local jurisdictions to zone and administer those lands as “Public Recreation.”[10]

This virtual taking of private property didn’t cause the Commission or Linda Goodman a moment’s discussion of how unconstitutional, unjust and unfair such a blatant violation of property rights this action caused. Instead, the Commission and Linda Goodman completely ignored this issue which has fundamental roots in our country’s moral fiber. The checks and balances that were incorporated in the Act to thwart this kind of treatment were laid aside when Secretary of Agriculture Ann Venaman washed her hands of responsibility by delegating Linda Goodman the power to find the plan co-written by her scenic area manager consistent with the Act.[11] Thus the people of the Gorge were sacrificed so the majority can take property they have no legal right under the constitution to acquire in such manner. So now our only recourse is the court system. But only those of us who can afford to access the courts are able do so. And that is where most of us fall through the net that would otherwise protect us. Only big pockets are caught by that net.

So that leaves you, as our elected representatives, to try to correct this terrible and illegitimate system of governance. You must protect our economy, because the Gorge Commission is not. They complain that they need more money to do the job they largely created for themselves, and they hold us hostage until and unless you acquiesce to their wishes. They have stopped processes that are mandated in the Act because you haven’t given them enough money to amass a large enough staff to man their ship through the slough of regulations that need to be traversed.[12] My clients, and others who own lands in the Gorge that have been indirectly taken via public zoning designations, or by misapplying zoning classifications to their lands, need your attention and help. We need you and all of your constituents to recognize the injustice and unconstitutionality of this system and acknowledge that here, but for the grace of God, could very well be yourselves.

I am attaching previous testimony I submitted to the Gorge Commission that was summarily ignored.[13] Although the Commission points proudly to the 60 public meetings and hearings it held during the management plan revision process, it failed to finish its job and adopt a “complete” revision.

I would respectfully ask you to put yourselves in our shoes, then look to yourselves for help, and help us all.

Thank you very much for coming today and listening and thinking about how to fix this.

[1] One of my clients has a management plan amendment application for a simple boundary correction that was initially submitted in 1999, postponed in 2000, postponed again in 2002, and then again in 2004.

[2] Skamania County Code Section 22.08-020(D)

[3] Pre-application conference with Skamania County Planning Department, August 5, 2004.

[4] Personal conversation on August 16, 2004.

[5] The Portland based group, Friends of the Gorge, doesn’t hesitate to litigate any decision they believe runs counter to their interpretations of the management plan that their former members on the Commission got adopted in 1992 (I believe all but one of the original governors’ appointees were members or former members of the Friends). Two of the three Commissioners who were appointed to the executive director search committee were founding members of the Friends, Dave Cannard and Don Clark, who selected a lawyer from 1000 Friends of Oregon, Dick Benner, to the job of Executive director and who was in charge of writing the management plan.

[6] U. S. Army Corps of Engineers’ appraisals.

[7] Anne W. Squier & Wayne Wooster, “FY 2004 Columbia River Gorge Appropriations Request,” March 10, 2004.

[8] Thomas Paine, Dissertations on Government, taken from: Thomas Paine, A Political Life, by John Keane, Little Brown and Company, 1995, pgs 260-261.

[9] Although the Commission officially claims it reviewed the entire plan a deemed only a portion in need of revision, the fact is that entire sections of the plan were left unrevised because it claimed it hadn’t the where with all or the staff to do a complete job.

[10] Although not a significant percentage of the total land area, lands designated Public Recreation, are some of the most suitable and desirable properties for potential commercial recreation development in the Gorge. Over twenty separate landowners are subjected to this zoning, which prohibits uses described in the zone that are allowed by public agencies, thus causing unequal treatment and protection of these private landowners.

[11] Section 6(f) of the Scenic Area Act requires the Secretary of Agriculture to concur that the plan adopted by the Commission “is consistent with the standards established in this section and the purposes of this Act.”

[12] One of the most egregious actions taken against the people of the Gorge by the Commission was a resolution closing the door to the management plan amendment application process until such time as all of the counties have adopt its revised management plan. Today, after the revisions have been adopted by Commission and concurrence has been issued by the Regional Forester, the Commission still keeps that door closed and continues to authorize other work tasks for its staff, ignoring its essential and mandated responsibilities.

[13] The possible exception that might be claimed is that after challenging the legality of having a United States employee, Kathy Sheehan, sit as a voting member of the Commission, Chairperson Anne Squire asked her legal counsel Jeffrey Litwack to respond. Mr. Litwack explained that the language of the act that literally prohibits Ms. Sheehan from sitting as a voting member was “inartfully crafted” and therefore could be ignored. The language of the Act on this point from Section 5(a)(5) is as follows: “Except for the ex-officio member appointed pursuant to paragraph (1)(C)(iv), the members and officers and employees of the Commission shall not be officers or employees of the United States for any purpose.”

Robin Huntington, who attended Yale and received his PhD in Sociology from Harvard, lives in The Dalles with his wife Marie and blesses us with his insightful views and takes on Gorge issues once a week. Robin and I began corresponding with each other after a mutual friend of ours alerted him to the existence of someone (me) who had mutual thoughts and concerns about the erosion of freedom that seems to be spiraling out of any semblance of what our founding fathers envisioned for our country. He urged Robin to make my acquaintance since he felt we were on the same wave length on a number of Gorge issues. After receiving a letter of introduction from Robin, my wife, Juanita, and I visited Robin and his wife, Marie, at their home in The Dalles, and have been good friends ever since. We are now about to embark on a joint venture where we will be publishing a weekly e-letter entitled “Search.” I will have a monthly column in Search under the banner of “Soundings from Steven,” where I will continue to advocating common sense in the exercise of land use planning. The format will be two pages. Page one will be for major news stories, op-ed pieces, guest columnists, and once a month my own column. Page two will be dedicated to Robin’s weekly column “Delightful The Dalles.”

I am taking the liberty of adding your e-address to our distribution list for Search. To avoid having this as one more piece of correspondence to clutter an already cluttered inbox, you can simply e-mail us back to have your name removed. Or if you happen to like what you see after getting Search, and believe there may be others who would like to receive it, feel free to exercise your mouse and keyboard in forwarding it on.

There has been much concern expressed recently over the Columbia River Gorge Commission’s management, or mismanagement (depending upon your point of view), of the Gorge and of its recently released revision of the Management Plan for the Columbia River Gorge. Appeals are in the works from those interested in seeing more flexibility in land use policy as well as those who wish to tighten up controls on development trends that are underway. A recent article published in the Salem Statesman Journal (June 18, 2004, Princess of preservation tackles the Gorge) provided a portrait of the founder of the Friends of the Gorge, Nancy Russell of Portland, that describes in a nutshell what the mind-set is of those who advocate more restrictions on growth. The writer states: "Nancy Russell sees the Gorge as a checkerboard, and if the public lands are black and the private lands are white, her dream is — square by square — to turn the whole checkerboard black."

Unfortunately for those of us who live in the Columbia Gorge, most of the political power is vested in the hands of those who would like to turn the clock back by buying up land in the Gorge and converting it to public ownership. The Gorge Commission’s recently revised management plan does provide a little more flexibility as to where a person may locate a structure on a lot, but the restrictions against new development have not really changed in a meaningful way. Property values of downzoned lands have plummeted compared to what those highly desirable building sites would have otherwise rated. The more property placed in public ownership, the greater the tax burden on those who live in the Gorge. Restrictions on economic growth and activity make counties that have been historically economically depressed subject to further economic decline.

What we need is a mind-set that recognizes that economic development and Gorge protection are not necessarily mutually exclusive. We need the flexibility to foster innovation and creativity among those of us who live in the Gorge and those who wish to invest in this beautiful part of the world. Rather than put up barricades, we need to tear down walls and allow creative minds to work for the betterment of the Gorge economy while protecting this area. As Robin would say, “We need to let societal evolution take its natural course.”

The senator explained that although the Scenic Area was created by a federal act, the bi-state compact that created the Gorge Commission is a creature of the state. “We own it. It’s ours. We fund it. We administer it. And we have a right to demand accountability.” After his Interim Gorge Senate Oversight Committee expired in the last biennium, he was successful in urging the senate president to appoint a select committee of members of the Senate Natural Resources Committee to take over where his oversight committee left off. The Chairman of the select committee is Senator Gary George, who Ferrioli said was one of the strongest land use rights advocates in the Oregon senate. He reported that the Oregon and Washington legislatures will now be working together seamlessly as a result of a budget note recently passed by the Washington legislature that will assure coordination.

He spoke of the broken promises of the federal government regarding the Gorge, particularly the funding that was promised for economic development. He said for example, “We are supposed to have economic development outside of the urban areas for issues relating to recreation.” These promises have not been kept.

Also of great importance to our cause, he will be meeting with Undersecretary of Agriculture Mark Rey and intends to discuss the importance of having an independent review of the revised management plan by the Secretary of Agriculture, rather than have that review and concurrence delegated to the US Forest Service regional forester in Portland. AOCS has been strongly advocating that the Gorge Commission’s 13^th member, USFS NSA Manager Dan Harkenrider, not write the concurrence, which would likely occur if the Secretary does not.

Senator Ted Ferrioli is a man deserving of our support and gratitude for his efforts in striving to assure there is a balance in the administration of the Act. He is looking out for all Gorge residents, not just those who seem to have wandered too deeply into the FOG and have lost their perspective.

Columbia River Gorge Commission Hearing on Final Draft Revised Management Plan (on behalf of AOCS)

Re: Challenge of any member who is an employee of the United States for any purpose from sitting as a member of the Gorge Commission and participating in the deliberation and action regarding adoption of the final draft revised management plan

My name is Steven B. Andersen of Cascade Planning Associates representing Advocates of Common Sense. I learned just yesterday from three separate sources that there is a member of the Commission who is an employee of the Forest Health section of the Region 6 Office of the United States Forest Service. I was told by Nancy of the Gorge Commission staff in answer to my inquiry that Kathy Sheehan is employed as an entomologist by the United States Forest Service Region 6 office in Portland, OR.[1] Connie of the Forest Service Region 6 staff also told me over the telephone that Kathy Sheehan is listed as an employee of the United States Forest Service and works in the Region 6 office in Portland, and that her supervisor is a United States Forest Service employee by the name of Doug Daoust.[2] When calling Ms. Sheehan on the telephone, she answered the phone by clarifying “Kathy Sheehan of the U. S. Forest Service.” When I asked if she worked for Doug Daoust, she responded “yes.”

It seems clear to me from this evidence that Ms. Sheehan works for and is supervised by the United States and is therefore prohibited from participating as a member of the Commission in accordance with Section 5(a)(5) of the Act, which states:

Except for the ex-officio member appointed pursuant to paragraph (1)(C)(iv), the members and officers and employees of the Commission shall not be officers or employees of the United States for any purpose.

Unless it can be shown that Ms. Sheehan does not work for the United States, I would challenge her to leave her seat and not participate in these proceedings, or any other proceedings of this Commission, as it would be a violation of the Act and a conflict of interest, given the fact that she will be and already has been participating in decisions whereby private property owners of Public Recreation lands have been denied the right to have plan amendment applications considered which would address the down-zoning of private property for public use, and that the United States Forest Service is a public agency that stands to gain a financial advantage if and when it might purchase such lands due to the down-zoned status of these properties. Ms. Sheehan has also participated in Commission decision-making whereby the PR section of the management plan was excluded from the review and revision process that has resulted in the “incomplete” final draft subject to this hearing today.

[1] Personal conversation between Nancy Andring and Steven Andersen on April 26, 2004, at the Gorge Commission office in White Salmon, WA.

[2] Telephone conversation between “Connie” and Steven Andersen on April 26, 2004.

Re: Testimony Pertaining to the Final Draft Revisions to the Management Plan (on behalf of AOCS)

We, Advocates of Common Sense (AOCS), oppose the adoption of the final draft revised management plan (Plan) in its current form. It is incomplete and therefore in violation of Section 6(g) of the Act, which specifies the plan be reviewed no sooner that five years after adoption, but at least every ten years.

Sections of the 1992 Plan that were not reviewed and revised contain provisions that adversely impact a landowner’s ability to utilize land in a manner that would otherwise conform to the intent and purposes of the Act. Keeping the door closed to the plan amendment application process while working on this plan revision since November of 2002 has denied landowners the ability to proceed with land planning and utilization. The Commission’s responsibilities are clearly defined in the Act.[1]

The Columbia River Gorge Commission must obey the law or dissolve. Residents are expected to obey the laws promulgated by this Commission even though it is an appointed, not an elected body. The Commission gets its authority from the Act. If it does not obey the Act, the Commission becomes illegitimate.

The review and revision process is critically important to the adaptive management goals of the Act, as well as to the freedom and security of residents. The Commission must obey the Act and complete this process in accordance with the law.

[1] Sections 6(g-h) of the Columbia River Gorge National Scenic Area Act; Public Law 99-663—November 17, 1986

Re: Testimony Pertaining to the Final Draft Revised Management Plan (on behalf of Cascade Planning)

My name is Steven B. Andersen of Cascade Planning Associates, 400 1^st Avenue in Mosier, Oregon. I represent applicants of postponed management plan amendment applications and I also speak for a group of property owners and friends known as Advocates of Common Sense.

In my last testimony on February 24^th, I had urged the Commission not to adopt a revised management plan that did not include a review and revision of all of the sections of the plan. The final revised plan is still incomplete, and therefore, in my mind, illegitimate. It shouldn’t be adopted without some provision or condition describing how the Commission is going to complete the responsibility that is mandated in Section 6(g) of the Act.[1]

In the past I was told by Commission staff that the subject of plan amendment applications I had either submitted to the Commission or was contemplating the submittal of on behalf of clients, would be addressed in this plan review. This didn’t happened. Instead, the Commission found that because of budget and staff shortages, it couldn’t complete the job. The fact that plan amendment applications are pending regarding sections of the plan that were excluded provide evidence that there is a need to consider these sections now, not ten or more years from now.

The Secretary of Agriculture, according to Section 6(f), shall concur with the revised plan if it is found consistent with the purposes of the Act. Section 6(f) contains no language that authorizes the Secretary to delegate this authority back to a member of the Commission, yet that is what I understand is being contemplated by the 13^th member of this Commission, the ex-officio representative from the United States Forest Service. It may be possible this Commission member may concur with this “incomplete” plan for the Secretary. It seems clear to me from reading the language of the Act, that this would be a circumvention of the purposes of the Act, in that there would not be an independent review by the Secretary. My concern results from my understand from the corresponding with Mr. Harkenrider, that he supports this incomplete plan revision, whereas I believe it to be illegitimate.[2] Because he is a member of the Commission and has been involved with the revision effort, his objectivity could be problematic. And I have heard from a local state senator that Mr. Harkenrider is the one who is recommending that the Secretary of Agriculture delegate this authority to the USFS region 6 forester, Linda Goodman, who would subsequently subdelegate this authority to him.[3] Regardless of its questionable propriety, the Commission should discourage this from happening, as it would make the concurrence process a sham.

Advocates of Common Sense, a group of property owners who advocate the exercise of common sense in land use planning, was initially formed because private property owners of lands designated under the Public Recreation (PR) land use classification are unable to have the Commission consider changes that would permit them to develop their property in the same manner as a public owner is permitted, nor in a manner that would provide private recreational activities. This left these ownerships out of the review and revision process, placing the owners in a unique and unequal position relative to other landowners whose properties were subject to review and revision. Section 6(b) of the Act defines those land use classifications that are authorized and required to be designated. Section 6(c) of the Act requires the Commission to include these land use designations in the management plan. Nowhere in Section 6(b) is “public” or “recreation” identified as land use classifications for designation. Designating private land for public use would therefore appear to be a violation of the Act itself. I can’t imagine Congress intending this kind of result. Congress’s intent was to identify, through study in Section 6(a)(3), lands suitable for public use facilities—nowhere in the Act does it encourage zoning private lands for public use before acquisition, but that is what the plan does. The plan requires the protection and enhancement of private recreation facilities, not the taking of them via a regulatory provision for public use.[4] The Commission needs to address this issue, and the unrevised sections of the plan, before adoption.

[1] Public Law 99-663-November 17, 1986

[2] E-mail correspondence from Dan Harkenrider to Steven Andersen, 4/02/04.

[3] E-mail correspondence from Oregon state senator Ted Ferrioli to Steven Andersen, 4/21/04.

[4] Section 6(d)(4) of Public Law 99-663, November 17, 1986.

This testimony is submitted in opposition to the adoption of the revised management plan as it is currently written in draft form and dated January 26, 2004, and described as “Public Review Draft.”

Section 6(g) of the NSA Act specifically states that you “shall review the management plan to determine whether it should be revised.” You are required to do this no sooner than 5 years from the date of adoption, but no less than once every 10 years. The public review draft does not include a complete review of the management plan, but only a portion of it. This document, therefore, does not represent a legitimate review and revision of the plan and should not be adopted without making provision for the completion of the review as required under Section 6(g).

Advocates of Common Sense (AOCS) members are property owners of lands within the scenic area who will be adversely effected by the adoption of this revised plan if needed and required corrections in land use and recreation intensity zoning designations are not incorporated in the revised plan. AOCS therefore objects to the adoption of the public review draft before a full review is made as is required under the Act. AOCS also objects to you closing the door to the plan amendment application process, which has effectively shut us out of a process which would otherwise provide relief from the errors and injustices that the current plan contains.

Re: Public Comment: The Closed Door + Cumulative Effects (On bhehalf of Cascade Planning Associates)

I would like to continue with our previous discussion of your closed door policy on plan amendment applications, but after hearing from Commissioner Robertson at the last meeting and contemplating Commissioner Reinig’s comments at the hearing on January 13, 2004, I am left with the impression that the decision had been made before the January hearing, and therefore the issue was, for all practical purposes, moot. I hope that before the 12-month deadline expires, there will be an opportunity for you to rethink this policy and see the wisdom of changing your collective mind. What I did want to do, though, was take issue with Commissioner Squire’s January 13th remarks that a plan amendment was different than a conditional use permit, and so, thereby, you were justified in treating it differently by not treating it at all. Commissioner Reinig’s motion to keep the door closed passed immediately after that comment was made. Although these two applications are different species, just like apples and oranges are different species, they do have similarities, just like apples and oranges have similarities, especially relative to project decision-making and processing, and, therefore, the comparison was unfair and unjustified. Apples and oranges are both fruit, for example. Plan amendments and conditional use permits are both forms of approvals that must be secured before certain projects are permitted. Both can be of equal significance to a project and, depending upon the proposed project and the circumstances, must precede it. In our particular case, corrections need to be made in the plan before the project can proceed; and the only way provided in the plan to make corrections is by amendment if the plan was not corrected during your 10-year review. Closing the door effectively denies us the ability to proceed in what would otherwise be an appropriate course. We believe that the course you have taken is unconstitutional and unnecessary given the alternatives you have available. You have prioritized away our right to the process that should be available to us. Hopefully, case not closed.

I would like to address something that Commissioner Crow brought up at that last meeting, and that is the subject of denying new home construction based on adverse cumulative effects. As I understand he is concerned about the staff approving development on the south slope of Burdoin Mountain; that if the staff isn’t going to do something about it, he will. He wasn’t real clear about just what he believed he could do, but it seems clear to me that he feels more homes in this wooded area was not in compliance with the Management Plan, regardless of density compliance. That was my impression, anyway.

I also heard Friends of the Gorge conservation director at your February 24, 2004, public hearing talking about your right to deny projects based on adverse cumulative effects, even when those projects may otherwise be permitted.

I have some real concerns about this. My concern is not with the concept of adverse cumulative effects as a tool in protecting Gorge resources. My concern is how it is applied, particularly if it is to be applied to home construction in areas where zoning has established the right to certain densities when criteria are met. There should be a presumption that the density of an area may be achieved without adversely impacting Gorge Resources provided the maximum density allowed under the respective zoning designation is not exceeded, otherwise the area would have been zoned differently. Such a denial would appear to be an abuse of police power, in that it would represent unequal protection under the law. After all, this is not a national park of public ownership. This is a national scenic area administered through zoning which consists primarily of private property owned by people who have constitutional rights. You shouldn’t treat private property as if it were publicly owned. I think this is philosophically where the problem exists in many peoples’ minds that view themselves as having rights to someone else’s property without purchasing it. The Act was intended to provide protection via a partnership between the public and private sectors, but what seems to be happening is that the private sector’s rights have been trampled on for the sake of the subjective public good; that the private landowner is expected to sacrifice his rights for his neighbor’s subjective happiness. I believe that is the core of the problem, and as long as you operate in that manner, you are traveling down a path toward failure. I really believe your staff shortage issue is a symptom of that core problem.

Re: Draft revised management plan (presented on behalf of Cascade Planning Associates)

Presented at the Columbia Gorge Discovery Center 5000 Pine Drive, The Dalles, OR, 1:35 p.m.

My name is Steven B. Andersen of Cascade Planning Associates. I live at 400 1^st Avenue in Mosier, Oregon. Cascade Planning is a land use services company that was established here in the Gorge in November of 1987, to assist public and private clientele with various planning issues. You were one of my first clients, as a matter of fact, having prepared your land use inventory and a hazards study. Prior to going into business I served as the planning director of Klickitat County where I was actively involved when the federal scenic area legislation was being debated.

I recall our Congressman at that time, Sid Morrison, explaining to us that the Scenic Area Bill was a freight train picking up speed. And rather than get in front of that freight train, he hopped on board the locomotive so he could be of some influence in its final destination. He got off that locomotive after it pulled into the station. What I am sure he, and many others, didn’t expect to see, was the locomotive getting high-jacked by the Friends of the Gorge. Virtually all of the governors’ appointees were members or former members of the Friends of the Gorge. And it was shortly after the former chair of Oregon’s Land Conservation & Development Commission got elected chairman of the new Gorge Commission, that he appointed two of the founding members of the Friends of the Gorge as the majority of a committee to search for an executive director. A land use lawyer from the staff of 1000 Friends of Oregon was hired from a field of only two final candidates. He, encouraged by a majority of the Commission, turned that locomotive into a steamroller. I remember in those days the Gorge Commission being compared to a pool of sharks and minnows. The minnows didn’t have a chance. The land use lawyer wrote a Management Plan that effectively became the steamroller that you are now revising some 12 years later.

What some of us had hoped for in the management plan review process, was that you would convert that steamroller into a passenger train set on a carefully staked route that would provide scenic protection while respecting Gorge residents’ fundamental rights to pursue happiness in a manner that would not adversely impact the Gorge; that the passengers would be a TRUE partnership of players in that effort.

Well, what you ended up with in this draft still looks more like a steamroller than a vehicle to carry partners. And you’re laying a track with only one rail--there are sections of the Management Plan that were not reviewed at all, contrary to your mandate in the Act to do so.[1] You are not in compliance with the legislation that created you. For example, no review was made of the accuracy of Open Space boundaries, or of the morality of leaving privately owned land in a public recreation land use designation where you prohibit private development of activities, but permit those same activities IF they are developed by a public agency. (I wish there was a tactful was of describing this, but no matter how you slice it, this is tyranny.) These two examples alone have added tremendous weight and efficacy to your steamroller.

What we need from you is a passenger train. Dismantle those parts of the apparatus that serve as nothing more than overkill; that unnecessarily adversely impact the economy and social well-being of the people that live and visit the Gorge. We need you to exercise COMMON SENSE in land use planning.

I am pleased to report to you today, that I represent a group that is being organized with that very objective in mind: Advocates Of Common Sense is a fledgling organization of property owners and their friends who advocate the exercise of common sense in land use planning.[2] You can visit our website at www.advocatesofcommonsense.com. Click on AOCS when you get there. The acronym, AOCS, is pronounced “ox.” We affectionately think of AOCS as a beast of burden, (a “green” ox, not a “blue” ox), Turning tyranny under so freedom can flourish. Our hope is that one day we can climb aboard a passenger train.

On a TV news program Sunday, I listened to the former CEO of General Electric, Jack Welch, explain that “Innovation is the key to our (country’s) success.” When you closed the door to the plan amendment application process, you effectively told your staff, and yourselves, that there is no need to be innovative. You are so wrong about that. Be innovative. Convert a steamroller into a passenger train and set it on a two-rail track. You just might find that your funding and staff shortage problems will become history.

[1] Section 6(g): “no sooner than five years . . . but at least every ten years. . .”

[2] Our first objective is to work toward getting the door open that you closed to us; where we find ourselves locked out of a process for making corrections to those sections of the Management Plan you have ignored; and that have devastating consequences in our ability to utilize land in a manner that would otherwise be consistent with the Act.

Re: The closed door to the plan amendment process (on behalf of Cascade Planning Associates)

Presented at Gorge Commission Office, #1 Town & Country Square, White Salmon, WA

My name is Steven B. Andersen of Cascade Planning Associates, 400 1^st Avenue in Mosier, Oregon. These comments relate to the decision you made last month to keep the door closed to the plan amendment process. I may not be able to keep within the five minutes allowed for public comment, so just give me a signal when my time is up and I will come back next month to continue.

I’ve had a month to mull your decision over in my mind, and try to make sense of it. So maybe a dialogue with you like this will be helpful to me to understand why you made the decision you did.

Our founding fathers established this country on some pretty basic principles. Chief among them was that citizens have fundamental rights. Chief among those, as I have always understood, is the right to the pursuit of happiness. Government, such as what you represent, is to protect those fundamental rights in a manner where the rights of the minority are protected from the whims of the majority. I represent a minority, that is, my clients are owners of property that has the potential to be used. Land use, if practiced in a manner which does not harm the rights of others, is an important right that is guaranteed us by our founding fathers.

Last month I argued on behalf of a fictitious owner of a bread bakery. John the bread maker is the personification of the minority I’m talking about. He is willing to conform with the rules that limit his livelihood, but finds that those rules, because of an error, unreasonably stop him from his pursuit of happiness. He comes to the commission to hear the chairman declare, by reading from the very Act which enables it to limit his activities, that the commission has the responsibility to address amendments “at any time (it determines) that conditions . . . have significantly changed.” “AT ANY TIME!”

He is dumbfounded when he hears the majority of the commission members voting to ignore that mandate and keep an error from being corrected which would allow him to pursue his livelihood in a manner which would otherwise conform to the rules he is willing to abide by. He is left devastated and I imagine him feeling much like that person in history over two thousand years ago who screams out to His enabler “Why have you forsaken me?” WHY???

That is the question I am seeking to understand myself. Because I can find no rational basis for it. It does not compute.

I used to be very much involved in Rotary International. Rotary has a ‘4 Way Test’ that can be used by anyone to evaluate choices that one makes in the course of conducting activities. I would like to share it with you. It can be used to gain some perspective on whether the choices made are good choices or bad choices. I would like to apply it to the choice you made last month and see how it stacks up.

I think this is the most important of the four parts of the test, and is rightly the first one. In your case, is it true that your staff is so short handed that it cannot find the time to bring to you applications for your consideration and determination as is mandated under the Act in Section 6(h)? In other words, could the staff, by some means, perhaps by reorganization or by prioritization, find a way to do the job that it is responsible to carry out. It is said that necessity is the mother of invention. It is also said that a job is completed in the time that is allocated to get it accomplished. In my own practice, I’ve found these statements to be true. In this case you have told your staff there is no necessity based on the “finding” that they have told you they don’t have the time. There was really no serious discussion of whether that was a “fact.” There was a very important fact that I think was very germane to the issue, and that was the fact that your staff recommended an alternative that it would abide by IF you decided to choose it. It was the same alternative that John the bread maker had recommended. It was in compliance with the Section 6(h) of the Act. That alternative recommendation demonstrates that the staff was willing to make the adjustments that would be required to get its job done and meet your responsibilities under the Act. It provides evidence that your finding was not the truth. Your choice failed the first part of the test.

Fairness was raised as an issue in my testimony last month. The answer seems to be axiomatic. John the bread maker’s livelihood, his pursuit of happiness, was sacrificed because the commission decided that his fundamental rights were less important than a commission objective. He was expected to abide by the commission’s decision, but the commission decided that it didn’t need to abide by its own rule. Tyranny, by its very nature, is unfair. Your choice failed the second part of the test.

I’m sure your staff was happy with your decision. I’m sure the one party that testified last week in favor of the staff’s recommendation was pleased with your choice. You passed the third part of the test.

John the bread maker, the personification of the land owner in the Gorge, was denied his fundamental right to pursue his livelihood. He had to stop baking bread. He had to let employees go. That had spin-off impacts on the community. Other people suffered. I have clients that are unable to use their property for what it otherwise could be put if corrections of errors were made. Your decision was not beneficial to them. Your choice failed the fourth test.

The conclusion, based on this application of the four way test, is that your choice was a bad decision. You get an “F.” You should give yourself the opportunity of getting a passing grade. YOU SHOULD DO THAT!

But that doesn’t answer my original question as to why it was made. And I would like to explore the answer to that question at your next regular meeting in March.

Re: Testimony in favor of opening the plan amendment process (on behalf of Cascade Planning Associates)

Presented at Bonneville Hot Springs Resort, 1252 East Cascade Drive, N. Bonneville, WA

My name is Steven B. Andersen of Cascade Planning Associates. I live at 400 1^st Avenue in Mosier, Oregon. Cascade Planning is a land use services company that was established here in the Gorge in November of 1987. Prior to opening the business I served as planning director of Klickitat County, Washington, beginning August of 1980. And I would like to very proudly state that for three of those years as planning director I enforced the only land use laws on the books of any of the governmental jurisdictions within the Gorge that provided scenic protection. So I feel a special affinity with you which makes me doubly pleased to speak to you today, and I very much appreciate this opportunity to address the subject of whether plan amendment applications should be considered since they were postponed in November of 2000 “until after Plan Review.”

On December 24, 2003, I received a letter from your executive director explaining that a plan amendment application I had submitted earlier that month was going to be considered “as postponed, based on Commission’s action (Commission Rule 350-50-075(4));” that this postponement could be reconsidered “at any regularly scheduled meeting and may commence the process by a majority vote (emphasis added).” On the day I submitted the application I was given a draft of your director’s memorandum of December 16^th regarding processing of plan amendments where she recommends that you clarify the wording of the November 2000 decision to keep the process closed “until the counties have adopted revised land use ordinances that are consistent with the management plan (approximately summer 2005).

After reading the December 24th letter I went back and reread Commission Rule 350-50-075(4) and it got me thinking of a memorable experience I had years ago as planning director. A very respected businessman came in to see me one day. I had never met him before, but I was acquainted with his reputation and the respect he had earned, so I was eager to make his acquaintance and discuss whatever issue he was concerned with. Upon seeing me he pointed a finger in my face and very seriously exclaimed, “The first thing I want to say is that I don’t like you and I don’t like what you stand for!” I lightly chuckled and respectfully said that what I stood for was the law. He then said something that I have never forgotten or lost sight of, “Just because something is the law, doesn’t make it right.”

And that got me to thinking about a dream I had about someone else. John was the owner of a bakery in a small rural community that baked and sold loaves of white bread. People in the community counted on the bakery to provide them with bread, and he counted on it himself to provide for his family’s needs. It’s how he made his living.

There was a movement that occurred in the region where John lived that ended up affecting him and his bakery. Among other concerns, there was a cry and eventually a law passed to require all bread made in his town to be brown rather than white. There was a commission formed to adopt the rules, which would specify, among many other things, how the bread was to be made. And there were professionals that staffed the commission to administer and enforce the rules—its analogous to the situation we have here, so I think it very apropos.

John wasn’t terribly happy about the movement, but was hopeful that he and his bakery would survive it. The rules that were published specified a recipe that must be used in making the bread, with special ingredients that had to be combined in specific quantities and fashion. The bread was not only to be brown, but it had to be of a specific, pleasing shape. All of these requirements were clearly presented in the rules. There was also a section in the rules which very clearly spelled out the penalties of noncompliance. If you didn’t follow the rules, your business could be shut down.

John gave the recipe to his cook, who explained that there must be a mistake. The recipe called for one teaspoon of yeast for each loaf of bread. The cook explained that given the special ingredients that were required, he could not get the bread dough to rise with only 1 teaspoon of yeast. John then talked to another cook, who had the same experience. He then went to a research laboratory to have a study conducted to determine if bread could be made using the recipe that was required of him. The report came back that the brown bread could only be made when using at least a tablespoon of yeast. Armed with this information, he went back to the commission’s staff and asked that the rules be changed to correct the error. He was hoping to have the problem corrected as soon as possible. He was worried that he might lose the way of life that brought him so much happiness. The staff very politely and professionally explained that the commission was just then in the process of reviewing the various and sundry rules; that it would be best to have the revision made during that process rather than make specific application. An application would likely be postponed anyway until the review was completed. John was resigned to wait, but knew it would be a hardship. He waited until the commission finished its review, but found that his situation was not addressed after all. The staff explained that because there were so many other subjects and such few staff, his problem was not addressed: He could either make application for the change, or make cake.

John submitted his application for the change, but was then told that although the commission had completed its review and adopted its changes in the rules, staff was still short and working on other important things, so it would be recommending to the commission that it keep the application postponed until the rules were actually published. The postponement would likely be at least another 18 months! John was then told he could address the commission about this recommendation, but he could not describe his particular problem. Because the commission would eventually be reviewing applications, it must remain objective--so the specific problem that needed correcting could not to be discussed at all.

What John eventually proposed to the commission is what I believe would work here as well. He suggested that it not postpone “the process,” which keeps all applications from being considered, but instead open up the process so that the merits of each application may be considered in relation to staff resources at the time they are submitted. Consider those applications for plan amendment where the issues and facts are clear and objective, such as in John’s case, or for example, where a district boundary line should be located based on previously adopted criteria, such as in our case. Postpone those applications which are more subjective and open to debate that would take greater staff resources to process.

Your plan review is finished. You have adopted the changes. As a matter of fairness alone, we should be allowed to present our applications rather than have the door remain closed to us. I realize that life is not fair, but I believe fairness is a worthy and important goal for all of us that live in this world together. We should strive for fairness. Fairness is a good thing. It’s the right thing. What is not right is to not make corrections of errors where those corrections are necessary for viability and that can be corrected with minimal staff resources. To use a “clarification” in a previous decision as the basis for continuing this unfairness in order to avoid spending any staff time at all in making amendments, may or may not be legally defensible, but I am hoping you will agree with me that it is not right. This can’t continue ad infinitum. Open the door, then decide who to invite in. Don’t keep the door closed.

I think there is a fundamental flaw in Commission Rule 350-50-075(4) that I believe should be discussed. The Rule is being used as an escape hatch to avoid taking responsibility for the rules and the management plan that you have adopted. If I went to a county outside the Gorge, for example, and submitted a land use plan or policy amendment, I would pay a fee and my application would be put in a queue and processed. Here, Rule 350-50-075(4) could technically be used indefinitely to stop a process that has been promulgated by the very same body that promulgated the Rule in the first place. It is inherently unfair, and therefore not right, regardless of its questionable legality. Your staffing problem should not be used as an excuse or reason to deny us due process.

Advocates of common sense