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December 18, 2020

Environmental, Natural Resources, & Energy Law Blog

MISTAKES AND MISSED OPPORTUNITIES ON MT. HOOD: How Federal Legislation Has Left the Mountain’s Future Uncertain - Stephanie Hayes

Mt. Hood is Portland’s backyard recreational haven, where one can enjoy a multitude of outdoor activities within a short drive of the city. Visits to the mountain are increasing as the Portland metro’s population grows (and gets closer to the mountain)[1], more tourists visit Oregon, and as recreational activities overall increase in popularity. Even during times of recession[2] or pandemic[3], when many economic sectors have contracted, the outdoor recreation economy keeps growing. How can Mt. Hood handle this escalating demand while remaining Portland’s beloved natural wonder? Who gets to have a say in the decisions affecting Mt. Hood’s future, and how do we ensure diverse interests, such as recreation, conservation, and development, are represented in the decision-making process? These questions could have been answered over a decade ago, but mistakes and missed opportunities in federal legislation have put the mountain in a precarious position. By examining a particular situation on Mt. Hood, the Cooper Spur- Government Camp Land Exchange (Land Exchange), alongside legislative structures in the Columbia River Gorge and Steens Mountain, we can see the legislative errors and the federal strategies Congress could have implemented to collaboratively manage the diverse interests impacting Mt. Hood.

The situation with the Land Exchange came to a head in the early 2000’s when Mt. Hood Meadows, a private corporation with a large ski resort on Mt. Hood’s developed southern side, acquired land through purchase and trade with Hood River County and planned to build a sprawling destination resort on the undeveloped northern side of the mountain.[4] This caused great alarm as the northern side of the mountain is known for its sensitive wildlife habitat, migration corridors for big game, old growth forests, a watershed providing drinking water to Hood River, and historic backcountry recreation. Local citizens, recreation clubs, local governments and conservation groups came together to oppose the development, and after several years of litigation and mediation, the parties reached a momentous settlement involving an exchange of land. While the Forest Service was not a party to the mediation, the parties communicated openly. They had to, as the land to be exchanged for development was federal land. This meant that to implement the settlement agreement, Congress had to act.

Congress did act, and in 2009 President Obama signed into law the Omnibus Public Land Management Act (2009 Act).[5] Among the many things included in the law, the 2009 Act provided direction for the Land Exchange under which the Forest Service would exchange a section of federal land on the south side of Mt. Hood for land on the north side owned by Mt. Hood Meadows.[6] The 2009 Act also created the Crystal Springs Watershed Management Unit for a portion of the land to be traded by Mt. Hood Meadows, and designated Mt. Hood as a National Recreation Area.[7] Although this legislation may appear to have settled open issues and provided necessary management tools for the mountain, in reality it did neither. To understand the law’s shortcomings, we need to take a trip around Oregon.

Within an hour’s drive north from Mt. Hood is the majestic Columbia River and the Gorge that surrounds it with towering mountains and waterfalls. The area is a magnet for locals and tourists alike, as it includes arguably the most photographed spot in Oregon, Multnomah Falls. In 1986, Congress enacted the Columbia River Gorge National Scenic Area Act (Gorge Act) to protect the area’s scenic, cultural, recreational, and natural resources, and to support the economy of the area by encouraging growth within the existing urban areas and allowing future development only as consistent with the Act.[8] The area under protection of the Gorge Act spans over eighty-five miles of the river and between one and four miles from the river into Oregon and Washington. What differentiates the area from national parks and monuments is land ownership, as nearly half of the lands covered by the Gorge Act are in private ownership[9] and the Act applies to new private land uses in the area.[10]

The Gorge Act directed Oregon and Washington to establish a regional agency called the Columbia River Gorge Commission which would establish a management plan. The commission consists of thirteen members including governor and county-appointed representatives, scenic-area residents, and one nonvoting member of the Forest Service appointed by the Secretary of Agriculture.[11] The commission may also establish voluntary technical and citizen advisory committees to assist the commission in carrying out its functions and responsibilities, which are achieving the purposes of the Gorge Act and facilitating the cooperation among the states.[12] In creating the management plan, the commission was to conduct a resource inventory, economic opportunity study and recreation assessment, consult with federal, state and local governments and Indian tribes, and hold public hearings and solicit public comments.[13] This inclusive and comprehensive process would ensure all voices were heard in shaping the future of the scenic area.

Although the plan was to be reviewed at least every ten years, until recently it was only updated once in 2004. The most recent update, however, which concluded in 2020, demonstrates how important the plan and the commission are as management tools under the Gorge Act. The review and input process took four years and thousands of people submitted comments to the commission, including developers, commercial businesses, local governments, Indian tribes, environmental organizations, and individual citizens.[14] The revised plan addresses modern concerns in the area, particularly around climate change and wildfires, and requires the development of diversity, equity and inclusion policies to ensure the scenic area considers everyone.[15] This revision was not rushed, but rather was rather laborious and thorough, and the collaborative process enabled the plan to truly reflect the evolving needs and interests of the land and people in the scenic area. Going forward, the revised plan will guide the commission in managing diverse interests and making compliant decisions.

About six hours southeast of the Columbia River Gorge Scenic Area is Steens Mountain, the highest point in southeastern Oregon and a popular recreation area with a landscape much different than Mt. Hood’s. The area is high desert, full of sagebrush instead of conifers, and supports wild horses and cattle grazing. In response to local opposition to a proposed national monument, and after extensive negotiations,[16] in October 2000 Congress created the nation’s first and only Cooperative Management and Protective Area (Steens Act).[17] The purpose and objectives of the Steens Act include conserving, protecting and managing the long-term ecological integrity of the area while promoting sustainable uses and fostering cooperation to reduce conflict.[18] Lawmakers said they hoped it would serve as a new model and an example of the Oregon way to do things, with lots of involvement at the grassroots level.[19]

Although the protective area consists primarily of federal land, the Steens Act directed the Bureau of Land Management (BLM) to manage the area collaboratively with a new Steens Mountain Advisory Council (SMAC). The council is to consist of twelve members appointed by the Secretary from nominees submitted by the county, the Oregon Governor, the Burns Paiute Tribe (Tribe), and the Oregon State Director of the BLM. The appointees must represent the diverse interests of private landowners, grazing permittees, recreational fishing, dispersed recreation, recreational permit holders, environmental representatives, mechanized or consumptive recreation, a wild horses expert, and a person who has no financial interest in the protection area.[20] The Steens Act also allows for the Secretary to appoint, as needed, or at the request of the SMAC, a team of respected, knowledgeable and diverse scientists to provide advice on questions related to area management.[21] This level of specificity in naming the diverse interests and requiring knowledgeable and expert input enables considerate protective area management reflecting wide-ranging perspectives.

Unlike the Columbia River Gorge Commission, the SMAC would serve only as a consultant in the creation of a management plan for the Steens Area.[22] The management plan is the responsibility of the Secretary of the Interior acting through the BLM, but the plan is to provide for coordination with the state, county, private landowners and the Tribe.[23] Beyond the management plan, the Steens Act also gives the Secretary the authority to enter into cooperative management agreements with non-federal landowners, the Tribe, permit holders, other federal and state agencies, and interested members of the public to achieve the resource or land use management objectives.[24] Therefore, the Secretary is not acting alone in creating the management plan and there are other tools available to accomplish ongoing management goals.

Over the past twenty years, the SMAC has advised the Secretary on issues such as the siting of wind turbines, off-road vehicle use, barbed-wire and fencing, and the protective area has benefitted from the restoration of wildlands and wildlife and long-awaited trail maintenance.[25] In 2015, the SMAC established the Public Lands Access Subcommittee to specialize in issues such as parking, motorized and non-motorized use, and private land easements, and in 2019, it established the Recreation and Visitor Use Subcommittee to specialize in issues related to hiking, camping, restrooms, signage, and issues that overlap with access.[26] The SMAC is currently recruiting for several open positions, and the BLM application website touts the success of the SMAC in “bringing diverse and often competing interests to the table” with an “inclusive approach” and recommendations that often lead to “sustainable outcomes that benefit natural resources and have a high level of public support.”[27]

With the Steens Mountain and Columbia River Gorge legislation occurring prior in time and locally within the State of Oregon, Congress had two relevant and accessible models available to use to design a scheme for collaborative management of Mt. Hood. The Land Exchange situation highlighted the diverse and competing interests on the mountain and the need for a collaborative approach. With the amount of stakeholder participation and the prolonged process in which the Land Exchange parties engaged to reach a settlement,[28] it was obvious how strong the public and private interests were at the time related to the mountain’s future. This was also not likely to be the only issue to cause conflict between various parties considering the growing Portland population and the rising demand for outdoor recreation. For locals, Mt. Hood provides the closest mountain experience and the next closest ski area to Portland is at least a few hours’ drive away. At stake in the Land Exchange and ongoing are interests such as the preservation of historic backcountry areas, the availability of clean drinking water, and the protection of wildlife habitat. These interests must be balanced against encroaching residential building, the demand for more recreational opportunities, and the desire for economic benefits from additional tourist lodging and spending. With the 2009 Act, Congress missed a huge opportunity to set up a structure to deal with conflicting interests and provide management tools for the future. It was as if the models in the Gorge Act and the Steens Act did not even exist.

The 2009 Act did not even accomplish the objective it was tasked to do: implement the Land Exchange. The 2009 Act called for another set of appraisals to be conducted when the parties had already agreed to their own,[29] and it failed to specify an appraisal method.[30] Contrast this with the Steens Act in which value of the land to be exchanged under four different land exchanges was already settled and all that was left to do was convey title and interest and disburse pre-determined amounts to the landowners.[31] Even the Gorge Act, which did not direct specific land exchanges, contemplated future exchanges of forest land and directed the “valuation of lands exchanged shall be determined in terms of forest uses for timber.”[32] So instead of implementing the settlement agreement between the parties, the 2009 Act reopened the Land Exchange to further conflict and uncertainty.

The 2009 Act’s designation of Mt. Hood as a National Recreation Area did not provide a means of addressing any future conflicts or balancing of interests. The areas included under the designation are disjointed and comprise a relatively small portion of the mountain and surrounding land areas.[33] The designated area is shy of 35,000 acres – when Forest Service land alone around the mountain totals over 1 million acres.[34] As learned from the Gorge Act, Congress can include non-federal lands in protected areas to ensure a comprehensive vision and broad collaboration, but Congress missed the opportunity to create something effective. Moreover, while the term “National Recreation Area” may indicate a higher level of protection, the land remains managed solely by the Secretary of Agriculture. The 2009 Act includes sections directing the Secretary to collaborate with the Oregon Department of Transportation to solve transportation challenges, and to create a management plan in consultation with Indian tribes related to cultural foods obligations under applicable treaties,[35] but these are quite distinct arrangements. There are also sections authorizing the Secretary to consult with the public regarding construction of a trail for use by persons with disabilities, and to establish a working group for the purpose of providing advice and recommendations related to recreation enhancements in the National Forest, but these activities are left up to the Secretary’s discretion.[36] Compared to the Gorge Act and the Steens Act, the 2009 Act provided little value for ongoing collaborative management of the mountain and addressing its big picture and long-term needs.

Congress had a second chance to address the needs of Mt Hood in 2018 when Oregon’s senators prompted Congress to revisit the Land Exchange, which was still incomplete several years later due to Forest Service delays.[37] The 2018 Mount Hood Cooper Spur Land Exchange Clarification Act (2018 Act) cleared up details related to the land to be exchanged, amending acreage and adding conservation and trail easements, and allowed for another round of appraisals to facilitate completion of the exchange within a new deadline.[38] Instead of capitalizing on the moment to address Mt. Hood’s greater needs in legislation focusing solely on Mt. Hood, and not buried in an overwhelming omnibus act as in 2009, Congress took a very narrow approach and dealt only with the Land Exchange. It missed another opportunity to enact meaningful legislation for future management of the mountain.

Two years later, the situation on Mt. Hood has become even more complicated. The Land Exchange is still not complete due to disagreements about the land appraisals.[39] It is important to reach agreement considering what is at stake, but agreement is more difficult when parties place different values on different uses of the land. While this perpetuates uncertainty for the lands to be exchanged, the biggest uncertainty lies with the Crystal Springs Watershed because its very existence depended on Mt. Hood Meadows’ land coming under ownership of the Forest Service.[40] For the past eleven years, the watershed has not been protected or managed as intended, and the future of the water supply remains unclear. Add to this a new complication: Mt. Hood Meadows has expressed its interest in keeping a portion of the land it originally agreed to exchange and holding open the possibility for future development.[41] This reversal in direction should come as no surprise given the growth in the area and the increased demand for recreation and lodging options since the original settlement agreement in 2005. Mt. Hood Meadows likely sees more value now in its land. However, development in this area would go directly against the intentions of the 2009 Act and the permanent protections it specified for the watershed. Had Congress accepted the parties’ appraisals in 2009 or given more direction in 2009 or 2018, these problems may have been avoided. Moreover, had Congress looked to the Gorge or to the Steens and mandated the creation of a similar collaborative management structure, there might be a process available to sort through these complicated issues and reach a sustainable solution. Without collaborative management or a management plan, Mt. Hood lacks the vision and tools to guide its way into the future.

The two pre-existing and successful models of the Gorge and the Steens exist right here in Oregon, demonstrating the experience of the state and its citizens to partner with federal agencies in determining the future of the recreational places we love. With Oregon’s new Office of Outdoor Recreation (OREC), created by House Bill 3350 and signed into law by Governor Kate Brown in 2017,[42] Oregon is even more poised to join these efforts from a recreation perspective. OREC’s mission is to coordinate the state’s outdoor recreation policies across agencies, between public and private sectors, and in cooperation with the organizations that have a vested interest in recreation in Oregon.[43] Moving forward, OREC could be the agency to represent recreational interests on collaborative management bodies, and perhaps it could even play a role in facilitating a final resolution to the Land Exchange. OREC’s task force, charged in part with making recommendations to support economic development and balancing improved recreation access with resource protection, recently completed a 2020 Framework for Action.[44] The report called out the importance of federal actions to recreational opportunities in Oregon and stated more should be done to ensure collaborative engagement.[45] Considering the history of the Land Exchange and the current precarious situation on Mt. Hood, I could not agree more.

 

[1] https://www.oregonmetro.gov/news/portland-region-grows-235-million-residents-census-estimates-newcomers-leading-way

[2] https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5389204.pdf

[3] https://katu.com/news/local/increase-in-outdoor-recreation-during-coronavirus-pandemic-creates-gear-shortage

[4] The detailed history of the Land Exchange can be found at https://www.thrivehoodriver.org/our-work/wild-places/mt-hood-land-trade/

[5] https://www.congress.gov/111/bills/s22/BILLS-111s22es.pdf

[6] Id. at Title I, Section 1206(a).

[7] Id. at Title I, Sections 1205 and 1204.

[8] 16 USC § 544a.

[9] http://www.gorgecommission.org/scenic-area/about-the-nsa/

[10] http://www.gorgecommission.org/about-crgc/faqs/

[11] 16 USC § 544c.

[12] Id.

[13] 16 USC § 544d.

[14] https://www.opb.org/article/2020/10/19/columbia-river-gorge-gets-approval-for-a-historic-revised-management-plan/

[15] Id.

[16] https://www.seattlepi.com/news/article/Politicians-dedicate-Steens-Mountain-preserve-1062750.php

[17] https://onda.org/2020/10/steens-act-turns-20/

[18] 16 USC § 460nnn-12.

[19] https://www.seattlepi.com/news/article/Politicians-dedicate-Steens-Mountain-preserve-1062750.php

[20] 16 USC § 460nnn-51.

[21] 16 USC § 460nnn-53.

[22] 16 USC § 460nnn-52.

[23] 16 USC § 460nnn-21.

[24] 16 USC 460nnn-41.

[25] https://onda.org/2020/10/steens-act-turns-20/

[26] https://www.blm.gov/get-involved/resource-advisory-council/near-you/oregon-washington/steens-mac

[27] https://www.blm.gov/press-release/representatives-needed-steens-mountain-advisory-council

[28] The conflict which culminated in the early 2000’s had actually been building for decades. See the history available at https://www.thrivehoodriver.org/our-work/wild-places/mt-hood-land-trade/

[29] The appraisal history can be found through the “detailed history” link available at https://www.thrivehoodriver.org/our-work/wild-places/mt-hood-land-trade/

[30] Section 1206 at https://www.congress.gov/111/plaws/publ11/PLAW-111publ11.pdf

[31] 16 USC 460nnn-101-104.

[32] 16 USC 544g.

[33] http://www.mounthoodnationalpark.org/MHNPArticles/100330_MHNRA_Map.jpg

[34] https://www.fs.usda.gov/detail/mthood/learning/?cid=stelprdb5187471

[35] Section 1207 at https://www.congress.gov/111/plaws/publ11/PLAW-111publ11.pdf

[36] Id.

[37] https://crag.org/us-forest-service-sued-for-failure-to-complete-mt-hood-land-exchange/

[38] https://www.congress.gov/115/plaws/publ110/PLAW-115publ110.pdf

[39] https://crag.org/long-effort-to-protect-cooper-spur-hangs-in-the-balance/

[40] Section 1205 at https://www.congress.gov/111/bills/s22/BILLS-111s22es.pdf

[41] https://crag.org/long-effort-to-protect-cooper-spur-hangs-in-the-balance/

[42] https://www.oregon.gov/orec/Documents/HB3350Legislation.pdf

[43] https://www.oregon.gov/orec/Pages/About-OREC.aspx

[44] https://www.oregon.gov/orec/Documents/OREC-Gov-Task-Force-Outdoors-2020.pdf, Page 2

[45] https://www.oregon.gov/orec/Documents/OREC-Gov-Task-Force-Outdoors-2020.pdf, Page 1512/18