S055916, Opinion — Friends of Columbia Gorge v. Columbia River (S055916)

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Argued and submitted October 29, 2008, decision of Court of Appeals and order
of Columbia River Gorge Commission affirmed July 16, 2009

FRIENDS OF THE COLUMBIA GORGE, INC.,
Collyn Baldwin, Claudia Curran, Eric Lichtenthaler,
Phil Pizanelli, Dixie Stevens, Kimberlee Thorsell,
Peter Thorsell, Brian Winter and Cynthia Winter,
Petitioners on Review,
and
Beverly KLOCK
and Clair Klock,
Petitioners,
v.

COLUMBIA RIVER GORGE COMMISSION,
Respondent on Review.

(CRGC No. PA 05-02; CA A131299; SC S055916)
213 P3d 1191

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En Banc

On review from the Court of Appeals .*

Gary K. Kahn, of Reeves, Kahn & Hennessy, Portland,
argued the cause and filed the brief for petitioners on review.

\* Judicial review of final order of the Columbia River Gorge Commission. 218
Or App 232, 179 P3d 706 (2008).

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

GILLETTE, J.

The decision of the Court of Appeals and the order of the
Columbia River Gorge Commission are affirmed.

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434-b Friends of Columbia Gorge v. Columbia River (S055916)

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GILLETTE, J.

This administrative law case is one of three filed by
the Friends of the Columbia Gorge and others (Friends),
challenging various actions by the Columbia River Gorge
Commission (the commission) under the Columbia River
Gorge National Scenic Area Act (the Act) and the Columbia
River Gorge Scenic Area Management Plan (management
plan). In this case, Friends challenges certain aspects of a
2005 amendment to the management plan, asserting that
they are inconsistent with the Act. On review, the Court of
Appeals concluded that the amendment to the management
plan did not violate the Act in any of the respects asserted by
Friends. Friends of Columbia Gorge v. Columbia River
(A131299), 218 Or App 232, 179 P3d 706 (2008). In this court,
Friends contends that the Court of Appeals applied the
wrong legal standards to its review of the commission's
actions and asks this court to reverse and remand the Court
of Appeals decision for reconsideration under the correct
standards. We allowed review and now affirm the decision of
the Court of Appeals.

To understand the issues in this case, a brief
summary of the legal background is necessary.1 In 1986,
Congress passed the Columbia River Gorge National Scenic
Act, 16 USC §§ 544-544p, which created the Columbia River
Gorge National Scenic Area in Oregon and Washington. The
purpose of the Act was to protect the scenic, cultural, recrea-
tional, and natural resources of the Columbia River Gorge,
and to protect and support the economy of the area by encour-
aging growth in existing urban areas and by allowing future
economic development while protecting the area's resources.
16 USC § 544a.

The Act authorized Oregon and Washington to enter
into an interstate compact and to create a regional agency,
the Columbia River Gorge Commission. The commission, in

1 Additional details concerning the statutory, regulatory, and procedural back-
ground of the commission's actions are provided in the two related cases between
the same parties that this court decides today, Friends of Columbia Gorge v.
Columbia River (S055722), 346 Or 366, 213 P3d 1164 (2009) (Friends (S055722));
and Friends of Columbia Gorge v. Columbia River (S055915), 346 Or 415, 212 P3d
1243 (2009).

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cooperation and consultation with the United States Secretary
of Agriculture, would be charged with developing and imple-
menting a land use management plan for the "scenic area,"
which includes approximately 292,000 acres of land along
both sides of the Columbia River.2 The Act divided the scenic
area into three kinds of subareas: urban areas, which are not
subject to scenic area regulations or the management plan,
16 USC 544b(e); "special management areas" (SMAs), which
comprise the more than 100,000 acres of land within the sce-
nic area that are deemed the most sensitive, 16 USC 544b(b);
and the areas in which the remaining land in the scenic area
is located, which are referred to as "general management
areas" (GMAs).3 It also established a framework within
which the management plan was to be developed, imple-
mented and administered. Among other things, that frame-
work directed the commission to carry out studies and inven-
tories of the features, uses, and resources of the land within
the scenic area and required the commission to use the
resulting studies and inventories to designate areas within
the scenic area that are suitable for various specific uses. 16
USC § 544d.

As authorized by the Act, Oregon and Washington
established the Columbia River Gorge Commission, and, in
1991, the commission adopted a management plan for the
Columbia River Gorge. The Act requires the commission to
undertake a comprehensive review of the management plan
at least every ten years and authorizes the commission to
make any necessary revisions, subject to the review and con-
currence of the Secretary of Agriculture. 16 USC § 544d(g). In
accordance with that requirement, over the next few years,
the commission reviewed whether and in what ways the
management plan should be revised, and, in 2004, the com-
mission adopted certain revisions to the plan.

2 The scenic area includes land in Multnomah, Hood River, and Wasco counties
in Oregon, and Clark, Skamania, and Klickitat counties in Washington.

3 The phrase "general management area" is not defined in the Act, but the com-
mission uses that phrase throughout the management plan to refer to the remain-
ing land in the scenic area. In addition, the statute that the Oregon legislature
enacted to implement the Act, ORS chapter 196, defines the phrase to mean "the
area within the scenic area that is not an urban area or special management area."
ORS 196.105(2).

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The Act also permits the commission to amend the
management plan "at any time that conditions within the
scenic area have significantly changed." 16 USC § 544d(h).
The commission adopted rules governing the amendment
process, which are published in Oregon at OAR chapter 350,
division 50.4 The rules set out procedures for citizens to initi-
ate the amendment process, either by requesting the com-
mission to initiate a legislative amendment to the manage-
ment plan or by filing an application for a quasi-judicial
amendment to the plan. OAR 350-050-0040. The only sub-
stantive criteria for the commission's approval of an amend-
ment application are set out in OAR 350-050-0030:

"The Commission must find the following criteria are sat-
isfied before it approves an amendment to the Management
Plan:

"(1) Conditions in the Scenic Area have significantly
changed. This means:

"(b) new information or inventory data regarding land
uses or resources that could result in a change of a plan des-
ignation, classification, or other plan provision;

"(2) The proposed amendment is consistent with the pur-
poses and standards of the Scenic Area Act; and

"(3) No practicable alternative to the proposed amend-
ment more consistent with the purposes and standards of
the Scenic Area Act exists."

Under that authority, the commission has amended
the management plan a number of times. As pertinent here,
in 2005, the owner of the View Point Inn, a building in
Multnomah County that is listed on the National Register of
Historic Places, submitted an application to the commission

4 The commission's rules also are on file at the commission's office and can be
found on its web site at http://www.gorgecommission.org/otherrules.cfm. The com-
mission amended its plan amendment rules in 2006, after its adoption of the plan
amendment at issue in this case, to, among other things, change the order of the
second and third amendment criteria in OAR 350-050-0030, and in other ways that
do not change our analysis of this case. Accordingly, we refer to pertinent rules
using their current OAR citations.

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to amend the management plan to permit him to use the
property for a commercial purpose consistent with its historic
use as an inn and a restaurant. The application proposed an
amendment to the management plan that would have
allowed historic properties in the scenic area that were listed
on the National Register before November 17, 1986, to be
used for restaurant or hotel purposes if that is how the prop-
erty had been used historically. The application also stated
that the purpose of the proposal was to allow the View Point
Inn to generate sufficient income to support its restoration.

In the course of considering that application, the
commission began to question how well the management
plan protected historic buildings in the scenic area. Ulti-
mately, the commission decided to consider expanding the
scope of the proposed amendment to address the protection of
such buildings more generally.5 It directed its staff to com-
mission an inventory of all historic buildings in the scenic
area; to evaluate the uses that were then allowed in those
buildings, as well as those that could be allowed to improve
protection of those buildings; to conduct a survey of how other
jurisdictions encourage preservation of historic buildings;
and to assess whether possible new uses of historic buildings
would be consistent with the purposes and standards of the
Act.6 With that information in hand, the commission voted to
table the View Point Inn application for the time being and
determined, instead, to devise a broader plan amendment
dealing with all historic buildings in the scenic area.

# The commission eventually proposed substantive modifications to the applicant's proposed plan amendment,

" As a practical matter, the only property in the scenic area that would have
qualified under the applicant's proposal to engage in the specified commercial uses
was the View Point Inn, because that was the only property on the National
Register for Historic Places prior to November 17, 1986, that originally was used
for restaurant and hotel purposes.

6 The survey revealed that there were four properties in the scenic area that
were listed on the National Register of Historic Places, all of which were located in
Multnomah County. In addition, 18 properties in the scenic area previously had
been determined to be eligible for listing under the criteria set out in 36 CFR § 60.4
for listing in the National Register, and 36 others were deemed to be potentially eli-
gible for listing.

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set a hearing date, and gave the public notice and an oppor-
tunity to comment on the proposed modification. At the con-
clusion of that process, the commission issued a final order
finding the three criteria required to support a plan amend-
ment under OAR 350-050-0030 and adopting Plan Amend-
ment (PA) 05-02, which is the subject of this proceeding. With
respect to amendment prerequisites set out in OAR 350-050-
0030, the commission found, first, that conditions in the sce-
nic area had changed significantly. OAR 350-050-0030(1)(b).
Specifically, the commission found that new information and
inventory data regarding historic buildings obtained through
the review process showed that certain cultural resources-
historic buildings-were not being well protected under the
management plan and, in fact, were deteriorating. The com-
mission also found that the management plan had not ade-
quately anticipated the difficulty of maintaining historic
buildings over the long term as a cultural resource in the sce-
nic area.7

Second, the commission found that there was no
practicable alternative to its proposed amendment that
would be more consistent with the Act. OAR 350-050-
0030(3). In that regard, the commission first discussed the
parameters of that criterion. The commission stated that con-
sideration of whether there is a practicable alternative
begins with the initial proposed plan amendment-to be an
"alternative" to that proposal, other suggested options have
to satisfy at least the same purpose as the initial proposal,
and to be "practicable," the options must be things that can
be done, considering technology and cost. See Management
Plan, Glossary (so defining the word "practicable").8

7 In the final order, the commission noted that the survey that it had commis-
sioned revealed that, since the adoption of the management plan, many historic
buildings, including some significant ones, had already been lost through demoli-
tion or incompatible alterations, and others were threatened by disuse or poor
maintenance. In addition, the consultants who conducted the survey interviewed
the owners of properties either on or eligible for listing on the National Register,
and observed that virtually all of them were concerned about the high cost of
restoring, rehabilitating, and maintaining historical buildings in a manner that
would preserve their historic integrity.

8 In this opinion, when we refer to the "management plan," we are not referring
to a particular paper document, but to the entire body of law that comprises
the management plan, including revisions and amendments that currently
are in effect. An up-to-date version of the management plan is available online at

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In this case, the purpose of the initial View Point Inn
proposed plan amendment was to allow an adaptive reuse of
that property in a manner likely to generate enough revenue
to support the restoration of the structure. The commission
found that its own modification to the initial proposed plan
amendment, PA 05-02, was a practicable alternative to that
initial, limited proposal because it was consistent with the
purposes of that proposal. The commission also found that
PA 05-02 was more consistent with the Act because it pro-
vided protection and enhancement of cultural resources not
covered by the initial View Point Inn proposal and contained
criteria designed to ensure that permissible uses of historic
properties did not adversely affect other resources in the sce-
nic area.

Finally, the commission considered and rejected sev-
eral other proposed modifications to the View Point Inn plan
amendment, including "an alternative" (which the commis-
sion summarized by listing nine key elements) that Friends
had suggested, on the ground that they were not practicable
alternatives to the initial proposed plan amendment or that
they were not more consistent with the purposes and stan-
dards of the Act than the commission's own proposed modifi-
cation. In the end, the commission found

"that there is no practicable alternative to [PA 05-02] that
is more consistent with the purpose and standards of the
Act. [PA 05-02] provides the most comprehensive protection
to historic resources of any alternatives considered, while
also being consistent with the purpose of the Applicant's
Proposed Plan Amendment. For these reasons, the Com-
mission concludes that [PA 05-02] satisfies the require-
ments of [OAR 350-050-0030(3)]."

Third, the commission found that PA 05-02 was con-
sistent with the purposes and standards of the Act, OAR 350-
050-0030(2), insofar as it allows historic buildings to be used
in a manner that protects their historic integrity and facili-
tates public appreciation of those buildings as significant cul-
tural resources. At the same time, by requiring that the new

http://www.gorgecommission.org. When we cite provisions in the management
plan in this opinion, we make an effort to give sufficient information to permit the
reader to find the provisions we discuss, but we do not attempt to refer to a partic-
ular document, online or on paper, or to any page numbers therein.

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uses of historic buildings meet new and existing guidelines
protecting other scenic, cultural, natural, and recreational
resources in the scenic area, PA 05-02 ensures that the addi-
tional uses of the historic buildings permitted in the plan
amendment do not adversely affect those other resources.
Finally, the commission found that, by allowing limited com-
mercial uses of historic buildings, PA 05-02 also was consis-
tent with the second purpose of the Act, to protect and sup-
port the economy of the area.

Having made those findings, the commission
approved PA 05-02, which added provisions to the manage-
ment plan permitting certain new commercial uses of historic
buildings in the GMA. First, PA 05-02 added the following
policy statement to the chapter in the management plan
dealing with cultural resources:

"20. Provide incentives to protect and enhance histori-
cally significant buildings by allowing uses of such build-
ings that are compatible with their historic character and
that provide public appreciation and enjoyment of them as
cultural resources."

Part I, ch 2 (Cultural Resources), GMA Provisions, GMA
Policies 20. In addition, it added a new section to the manage-
ment plan that, among other things, expressly permits the
following commercial uses of historic buildings:

## "GMA Guidelines

### "Additional Review Uses for Historic Buildings

"1. Properties in all GMA land use designations except
Open Space and Agriculture-Special with buildings
included on the National Register of Historic Places shall be
permitted to be open to the public for viewing, interpretive
displays, and an associated gift shop * * * , subject to com-
pliance with the applicable guidelines to protect scenic, cul-
tural, natural and recreation resources [and other protec-
tive guidelines].

"2. Properties in all GMA land use designations except
Open Space and Agriculture-Special with buildings
included on the National Register of Historic Places, and
which were former restaurants and/or inns shall be permit-
ted to re-establish these former uses, subject to compliance
with the applicable guidelines to protect scenic, cultural,

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natural and recreation resources [and other protective
guidelines] * * * [9]

"3. Properties in all GMA land use designations except
Open Space and Agriculture-Special with buildings
included on the National Register of Historic Places shall be
permitted to hold commercial events, subject to compliance
with the applicable guidelines to protect scenic, cultural,
natural and recreation resources [and other protective
guidelines].

"4. The following additional review uses may be allowed
in all GMA land use designations except Open Space and
Agriculture-Special on a property with a building either on
or eligible for the National Register [of] Historic Places and
that was 50 years old or older as of January 1, 2006, subject
to compliance with the applicable guidelines to protect sce-
nic, cultural, natural and recreation resources * * * [listing
ten types of commercial activities10]."

Management Plan, Part II, ch 7 (General Policies and
Guidelines), Special Uses in Historic Buildings, GMA
Guidelines, Additional Review Uses for Historic Buildings.

Friends sought judicial review in the Court of
Appeals of the commission's final order adopting PA 05-02. In
that court, Friends interposed three objections to the adop-
tion of the plan amendment: (1) that conditions in the scenic
area had not changed significantly enough to warrant
amendment of the management plan under OAR 350-050-
0030; (2) that the commission improperly rejected or failed to
consider all practicable alternatives to PA 05-02 before
adopting that amendment; and (3) that the plan amendment
is not consistent with the purposes and standards of the Act.
The Court of Appeals rejected all three arguments.

Before this court, Friends has abandoned its first
argument, viz., that the commission did not have authority to
adopt PA 05-02 because conditions in the scenic area had not

9 This second category would permit the use requested in the original View
Point Inn application.

10 The permissible commercial activities include, among other things, drinking
establishments, outdoor and indoor commercial events, wineries, artist studios
and galleries, conference and retreat facilities, and parking lots.

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changed significantly enough to justify amending the man-
agement plan. Friends now limits its focus to its second and
third arguments. Specifically, Friends argues that, because
the commission did not discuss certain of Friends' proposed
alternatives to PA 05-02 in its final order adopting PA 05-02,
it failed to carry out its duty under OAR 350-050-0030(3) to
determine that "[n]o practicable alternative to the proposed
amendment more consistent with the purposes and stan-
dards of the Scenic Area Act exists." Friends also contends
that the commission failed to carry out its duty under OAR
350-050-0030(2) to ensure that "[t]he proposed amendment is
consistent with the purposes and standards of the Scenic
Area Act," insofar as PA 05-02 permits certain commercial
uses of resources in areas zoned for agricultural, forest, pub-
lic recreation, and residential uses notwithstanding what
Friends contends is the Act's mandate to allow large scale
commercial uses only in urban areas and other areas zoned
for such uses and notwithstanding the Act's requirement to
protect and enhance agricultural and forest land for agricul-
tural and forest uses.

Before we address Friends' substantive challenges
to the commission's final order, we first consider two prelim-
inary objections that Friends raises to the standards of
review that the Court of Appeals used in evaluating its
claims. Friends contends that the Court of Appeals erred in
holding that, to succeed on a claim that PA 05-02 violates the
Act, Friends must demonstrate that the plan cannot be
applied consistently with the Act under any circumstance.
Friends asserts that that standard is unduly restrictive.
Rather, Friends asserts, it need only show that the chal-
lenged policies and guidelines depart from or contravene a
legal standard expressed or implied in the Act. Friends also
argues that the Court of Appeals further erred in holding
that, when commission actions are reviewed in Oregon
courts, the deferential standard of review set out in Chevron
USA, Inc. v. Natural Res. Def. Council, 467 US 837, 104 S Ct
2778, 81 L Ed 2d 694 (1984), applies. Under that standard of
review, when a federal agency has been charged by Congress
with implementing a federal statute, courts are to defer to
that agency's interpretation of the statute, treating it as con-
trolling, as long as it is reasonable. On that point, Friends

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argues that, because the commission is not, strictly speaking,
a federal agency charged by Congress with implementing a
federal law, this court should apply Oregon's statutory con-
struction methods to the commission's interpretations of the
Act.

This court considered both those contentions in
Friends of Columbia Gorge v. Columbia River (S055722), 346
Or 366, 213 P3d 1164 (2009) (Friends (S055722)). With
respect to the first, we agreed with Friends and held that the
stringent standard of review that the Court of Appeals used
is not appropriate to the issues on review. We will not repeat
that lengthy discussion here. It is sufficient for the purposes
of this case to state that the management plan, both in its
original and its revised (and, in this case, amended) form, is
much like a "rule" as that term is defined in the Oregon APA:
"any agency directive, standard, regulation or statement of
general applicability that implements, interprets or pre-
scribes law or policy, or describes the procedure or practice
requirements of any agency." ORS 183.310(9). Friends
(S055722), 346 Or at 376. Moreover, we observed, the plan
was adopted and revised by the commission through a proc-
ess that is similar to the rulemaking process prescribed in the
Oregon APA at ORS 183.335. Id. We concluded that,
although the commission is not a state agency that is directly
subject to the Oregon APA, Friends' challenges to the man-
agement plan (and its revisions and amendments) neverthe-
less are analogous to typical "facial" challenges to the validity
of a rule under the Oregon APA. Therefore, in reviewing the
commission's action under ORS 196.115(3)(c) to (e), the court
must consider the legal standard that a court would use in
judicial review of a rule under the APA: whether the commis-
sion "departed from a legal standard expressed or implied in
the particular law being administered, or contravened some
other applicable statute." Id. at 377, quoting Planned Parent-
hood Assn. v. Dept. of Human Res., 297 Or 562, 565, 687 P2d
785 (1984). That standard, we held, was the appropriate one
to apply to Friends' facial challenge to the lawfulness of the
management plan, rather than the "under any circum-
stances" test applied by the Court of Appeals, and the Court
of Appeals therefore erred in that regard. Id. We take the
same view here.

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With respect to Friends' argument concerning the
applicability of the deferential standard of review set out in
Chevron, we agreed with the Court of Appeals that, in eval-
uating the commission's interpretation of the Act, it is appro-
priate to apply that standard. Id. at 384. We see no reason to
repeat that discussion here, particularly because nothing in
our review in this case implicates or requires Chevron
deference.

We turn to Friends' substantive challenges to the
commission's final order. As noted, Friends' objections are
two-fold. Friends contends, first, that the Court of Appeals
erred in concluding that the commission met its obligation
under OAR 350-050-0030(3) to ensure that there is no prac-
ticable alternative to PA 05-02 more consistent with the Act.
Second, Friends asserts that, to the extent that PA 05-02
allows new commercial uses and development in areas not
zoned for such uses, it is inconsistent with the Act and the
Court of Appeals erred in concluding to the contrary. As we
shall explain, both of Friends' arguments rest on faulty
assumptions.

Under OAR 350-050-0030, "[t]he Commission must
find the following criteria are satisfied before it approves an
amendment to the Management Plan: * * * (3) [n]o practica-
ble alternative to the proposed amendment more consistent
with the purposes and standards of the Scenic Area Act
exists." As Friends reads the foregoing, it requires the com-
mission to "show" that no practicable alternative exists,
through "some evaluation of specific alternatives presented
to [it]." (Emphasis in original.) Friends concludes that,
because the final order does not set out an explanation of cer-
tain practicable and reasonable alternatives (in Friends'
view) that Friends had proposed, and the reasons for the
commission's rejection of them, the commission necessarily
must have failed entirely to evaluate those alternatives.11

11 The Court of Appeals understood Friends to be arguing that, because the
commission is required to conclude that "no practicable alternative exists," it must
consider and reject "each and every conceivable alternative." The court rejected
that argument, concluding that that requirement means only that the commission
must exercise some measure of discretion and act reasonably in the circumstances.
Friends, 218 Or App at 249. Friends does not challenge that interpretation here.
Rather, Friends contends only "that the commission must evaluate specific alter-
natives presented to it," but did not do so in this case.

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And, according to Friends, that failure violated the commis-
sion's mandate under OAR 350-050-0030(3) and, conse-
quently, the final order was "inconsistent with an agency
rule, an officially stated agency position or a prior agency
practice." ORS 196.115(3)(d)(B). Also implicit in Friends'
argument is the assumption that certain of its proposed
alternatives that the commission failed to consider were
"more consistent with the purposes and standards of" the
Act.

The commission responds that it considered the
alternatives that Friends submitted as a "package," that
nothing in the rule precludes it from considering them in that
manner, and that it gave due consideration to all parts of that
package, even if it did not refer specifically to some of the
parts on its list of the package's "key elements" in its final
order. And, having done so, the commission claims that it cor-
rectly concluded that Friends' proposed alternatives were no
more consistent with the purposes and standards of the Act
than PA 05-02, insofar as the text of PA 05-02 permits certain
new commercial uses of historic properties "subject to compli-
ance with the applicable guidelines to protect scenic, cul-
tural, natural, and recreation resources." Management Plan,
Part II, ch 7 (General Policies and Guidelines), Special Uses
in Historic Buildings, GMA Guidelines, Additional Review
Uses for Historic Buildings. In other words, the commission
concluded that none of Friends' suggested alternatives ulti-
mately would better serve the Act's dual purposes of protect-
ing resources while at the same time protecting and support-
ing the economy of the area by allowing a measure of
economic activity.

As the commission's response accurately suggests,
the premise of Friends' argument is fallacious: the fact that
the commission did not describe in the final order all the
details of Friends' proposed alternative does not, without
more, mean that the commission did not evaluate those
details. As Friends itself points out and as the record reflects,
Friends submitted a multi-part alternative proposal, along
with a complete explanation of the impact of the various per-
mutations, to each commissioner during the plan amend-
ment comment period. The commission's final order states

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that the commission considered Friends' proposed alterna-
tive. It is fair to take the commission at its word that it gave
due consideration to all parts of Friends' proposal, and
Friends has not identified any reason not to do so.

Moreover, to the extent that Friends can be under-
stood to be arguing that the commission is required by its
own rules or some other source of law to evaluate each and
every aspect of Friends' suggested alternatives in the final
order, that argument also fails. First, contrary to Friends'
argument, the rule itself does not require the commission to
"show" that no practicable alternative exists through an
"evaluation" of specific alternatives, presumably in the final
order. OAR 350-050-0030 merely provides that the commis-
sion "must find" that no practicable alternative to the pro-
posed amendment more consistent with the Act exists.12 In
its final order, the commission did so find. In addition,
although this court often has held that an administrative
order must include findings that are adequate for meaningful
judicial review, see, e.g., Doherty v. Oregon Water Resources
Director, 308 Or 543, 547, 783 P2d 519 (1989) (so stating);
Diack v. City of Portland, 306 Or 287, 301, 759 P2d 1070
(1988) (same), we conclude that the commission's final order
meets that standard here. The order listed what the commis-
sion believed to be the most relevant components of Friends'
alternative, summarized the key points, and explained why
Friends' alternative was not practicable and why it would
provide less protection for historic buildings than PA 05-02.
For all those reasons, we conclude, as did the Court of
Appeals, that the commission met its obligation under OAR
350-050-0030(3) to ensure that there is no practicable alter-
native to PA 05-02 more consistent with the purposes and
standards of the Act.

Finally, Friends argues that the Court of Appeals
erred in concluding that PA 05-02 is "consistent with the pur-
poses and standards of the Scenic Area Act." OAR 350-050-
0030(2). According to Friends, the Act "allow[s] large-scale

12 Friends does not engage in any kind of interpretive analysis of the words
"must find" in OAR 350-050-0030 to show that those words mean that the commis-
sion must make specific findings in its order individually rejecting each alternative
that was presented to it.

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commercial uses and development only in urban areas and
areas zoned for such uses," yet PA 05-02 permits numerous
types of new commercial uses and development, including
restaurants, bars, hotels, and wineries, in nearly the entire
GMA, including on land zoned for agricultural, forest, recre-
ational, and residential purposes, "without the suitability
analysis required by the Act." Moreover, Friends argues, the
commission did not zone particular areas for the commercial
use of historic buildings, as Friends contends the Act
requires, nor did the commission limit the scope of the plan
amendment to areas already zoned for commercial uses.
Finally, Friends contends that allowing commercial uses of
historic properties throughout the GMA undermines the sec-
ond purpose of the Act, which is to encourage commercial
activity to occur in existing urban areas.

The problem with those arguments, as the Court of
Appeals correctly observed, is that the Act does not contain
the restrictions on commercial uses for which Friends con-
tends. Friends points to 16 USC § 544d(b)(5) as authority for
its position that the Act requires the commission to confine
commercial uses and development outside of urban areas
within specific areas designated as commercial zones.
Section 544d of the Act generally describes what must be
included in the management plan. Subsection (b) of that sec-
tion provides:

"Within two years after the Commission is established,
it shall develop land use designations for the use of non-
Federal lands within the scenic area. The land use desig-
nations shall

"(5) designate lands in the scenic area outside the spe-
cial management area 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 characteristics of the areas in question and their
geographic proximity to transportation, commercial, and
industrial facilities and other amenities."

16 USC § 544d(b)(5). As the commission points out, the
foregoing requirement to designate areas for commercial

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development is simply a directive that the management plan
include land use designations that permit commercial devel-
opment in the scenic area, which the commission fulfilled by
creating Commercial, Commercial Recreational, and Rural
Center land use designations. In addition, the requirement to
take various geographic and physical factors into account
applies only to the commission's creation of land designa-
tions. The requirement does not, as Friends argues, "require"
a "suitability analysis" before the commission may permit
any commercial use in the scenic area. Indeed, another part
of the same section, 16 USC § 544d(d)(7), requires the man-
agement plan to include a provision to "require that commer-
cial development outside urban areas take place without
adversely affecting the scenic, cultural, recreation, or natural
resources of the scenic area." (Emphasis added.) In express
compliance with that requirement, PA 05-02 permits various
commercial uses of historic buildings "subject to compliance
with the applicable guidelines to protect scenic, cultural, nat-
ural and recreation resources and [other historic building
and cultural resource protection guidelines] and all Scenic,
Recreation, Agriculture and Forest Lands Guidelines." In
short, we conclude that 16 USC § 544d(b)(5) does not in any
way speak to the commission's authority to permit commer-
cial activities in other parts of the scenic area.13

We also fail to see how permitting certain new com-
mercial uses of historic properties in the scenic area "under-
mines" the Act's stated purpose of "encouraging growth to
occur in existing urban areas." 16 USC § 544a(2). Friends'
contends that owners of historic buildings engaging in com-
mercial uses of those properties will compete with businesses
in urban areas, to the detriment of the urban businesses.
That argument is completely inapposite. Even if the amend-
ment can be viewed as encouraging commercial use of his-
toric properties outside of existing urban areas, that result is
not inherently inconsistent with the Act's second purpose to
encourage commercial development in urban areas. And it

13 Friends also seems to argue that PA 05-02 conflicts with certain provisions
in the management plan as it was originally adopted in 1991, limiting commercial
activities to areas designated for such activities. That argument, however, is a non
sequitur, insofar as any amendment to the management plan, by its very nature,
likely will be inconsistent with the original terms of the management plan.

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<!-- PageHeader="Friends of Columbia Gorge v. Columbia River (S055916)" -->

certainly does not violate any provision of the Act. It follows
that the Court of Appeals correctly concluded that Friends
failed to identify how the plan amendment permits anything
that the Act prohibits.

The decision of the Court of Appeals and the order of
the Columbia River Gorge Commission are affirmed.