THE AVAILABILITY OF JUDICIAL REVIEW OF ACTIONS BY AN INTERSTATE COMPACT AGENCY I. Introduction Jeffrey B. Litwak 1 An interstate compact agency is a creature of a compact between two or more states. Like all administrative agencies, a compact agency has only those authorities granted to it, and no more. The compact agency s authorities are derived from the compact that created it. 2 An interstate compact is transformed into federal law when it has received the consent of Congress and is an appropriate subject for federal legislation; 3 however, this designation as federal law does not make all federal law applicable to the compact. 4 Availability of review issues typically occur where a compact is silent concerning judicial review. Federal courts seem to be in agreement that unless specifically provided, a compact entity is not considered a federal agency for the purpose of the federal APA. 5 Whether states administrative procedures acts apply is more complicated. Different 1 Counsel, Columbia River Gorge Commission, an interstate compact agency created by Oregon and Washington; Adjunct Professor of Law, Northwestern School of Law at Lewis and Clark College (Interstate Compacts Seminar); Municipal land use hearings officer. The analysis and opinions in these materials are solely those of the author, and do not represent policy of or other stated direction by the Columbia River Gorge Commission. 2 See, e.g., International Union of Operating Engineers, Local 542 v. Delaware River Joint Toll Bridge Comm n, 311 F.3d 273, 274 (3d Cir. 2002). 3 Cuyler v. Adams, 449 U.S. 433, 438 40 (1981). 4 Lakeview Development Corp. v. City of South Lake Tahoe, 915 F.2d 1290, 1295 (9th Cir. 1990). 5 See, e.g., Organic Cow v. Northeast Dairy Compact Comm n, 164 F. Supp. 2d 412, 420 (D.Vt. 2001); Old Town Trolley Tours, Inc., v. Washington Metro. Area Transit Comm n, 129 F.3d 201, 204 (D.C. Cir. 1997). But see, Seattle Master Builders v. Pac. NW Elec. Power and Cons. Planning Council, 786 F.2d 1359, 1366 (9th Cir. 1986) (Congress directed judicial review pursuant to federal APA). 1
courts consider different factors in determining whether state law applies to an interstate compact. For example, the Ninth Circuit has stated that A state can impose state law on a compact organization only if the compact specifically reserves its right to do so. 6 Similarly, the Third Circuit has concluded that states may not impose their laws on a compact simply by adopting similar legislation. 7 To simply subject a compact entity to the states acts could result in non-uniform decision making due to state courts natural familiarity with their own law, state courts differing judicial opinions concerning even identical language, and differing standards of review. 8 With this unique standing in the federalist system, judicial review of compact agency actions raises a few issues not typically seen in federal or state practice. This paper highlights those issues. The reader should note that there is little precedence involving the availability of review for compact agencies, thus much of this material is based on statutes, compacts, and the author s experience. II. Proper Respondent Identifying the proper respondent is usually straightforward in state or federal practice. Similarly, where a compact entity itself is the actor, the respondent will 6 Seattle Master Builders v. Pac. NW Elec. Power and Cons. Planning Council, 786 F.2d 1359, 1371 (9th Cir. 1986). The Washington State Supreme Court followed this case in Salmon for All v. Department of Fisheries, 821 P.2d 1211, 1215 16, 118 Wn. 2d 270, 278 (1992). 7 International Union of Operating Engineers, Local 542 v. Delaware River Joint Toll Bridge Comm n, 311 F.3d 273, 280 (3d Cir. 2002). 8 Some compacts are subject to state administrative procedures acts, but in a manner that avoids some of these problems. See, e.g., Applicable law: For the purpose of providing a uniform system of law, which in addition to sections 544 to 544p of this title, are applicable to the Commission, the Commission shall adopt regulations relating to administrative procedure * * * consistent with the more restrictive statutory provisions of either State. 16 U.S.C. 544c(b). This provision is incorporated as a condition precedent into the Columbia River Gorge Compact 16 U.S.C. 544o(e); Col. Riv. Gorge Compact. Art. I.a. 2
typically be the compact entity itself. While this should always be the case for rulemaking actions, there may be exceptions for adjudication actions. For example: The Columbia River Gorge Commission, an interstate compact agency created by Oregon and Washington acts as an appellate board for all local land use decisions in the Columbia River Gorge National Scenic Area. After an appellant exhausts all local administrative remedies, the case goes to the Gorge Commission as Appellant v. Local Government. When a party seeks judicial review of the Gorge Commission s decision on appeal, the Oregon Court of Appeals has determined that the Gorge Commission is not the respondent because the Gorge Commission acts only as the adjudicator. 9 Compact agencies are not the only entities that take action pursuant to a compact. Where a state acts pursuant to its obligations under a compact, the proper defendant is typically the state. For example: Connecticut Hearings Officer orders suspension of Connecticut resident s driver s license pursuant to Driver License Compact following a DUI conviction in Maine. Judicial review of that action is against the Connecticut Commissioner because the Driver License Compact is administered by the party states. 10 III. Methods of Obtaining Judicial Review A. Jurisdiction Jurisdiction to review a compact agency s action may come from many sources the compact, other state statutes that implement a compact, conditions that Congress places on its consent; or general administrative law principles where the above are silent. In many cases, jurisdiction to review an administrative decision must be inferred from a general grant of jurisdiction. Below are several examples. 9 Johnson v. Multnomah County, No. CA A117027 (Or. App. Feb. 1, 2002) (sua sponte order changing title of case from Multnomah County v. Columbia River Gorge Commission). 10 Bard v. Commissioner of Motor Vehicles, 768 A.2d 960, 963, 62 Conn. App. 45, 51 (2001). 3
Example of compact specifying jurisdiction to review administrative action Judicial proceedings to review any bylaw, rule, regulation, order or other action of the [Delaware River and Bay] authority or to determine the meaning or effect thereof, may be brought in such court of each state, and pursuant to such law or rules thereof, as a similar proceeding with respect to any agency of such state might be brought. 11 Example of state statute with general grant of jurisdiction The States consent to suits, actions or proceedings or any form or nature at law, in equity, or otherwise... against the Port of New York Authority. 12 * * * Example of a condition of congressional consent ( general grant of jurisdiction) The FBI or a Party State may appeal any decision of the Council to the Attorney General, and thereafter may file suit in the appropriate district court of the United States, which shall have original jurisdiction of all cases or controversies arising under this Compact. Any suit arising under this Compact and initiated in a State court shall be removed to the appropriate district court of the United States in the manner provided by section 1446 of title 28, United States Code, or other statutory authority. 13 B. Venue It is surprising that there is little case law concerning venue for compact agency actions because venue is not as straightforward as with federal and state agencies. Venue for federal agency action is specified in the general venue statute, which provides venue, in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action. 14 States generally specify venue 11 The Delaware-New Jersey Compact, Art. XV. Note also that this provision expressly preserves the states laws, probably including the states Administrative Procedures Acts. 12 N.J. Stat. Ann. 32:1-157 (West 1963); N.Y. Unconsol. Laws 7101 (McKinney 1979). 13 National Crime Prevention and Privacy Compact, Art. XI (codified at 42 U.S.C. 14616(c)). Here, Congress granted consent to the states to create the NCPPC. The terms are treated as conditions that Congress may properly attach to its consent. See e.g. Petty v. Tennessee-Missouri Bridge Comm n, 359 U.S. 275, 281 (1959). 14 28 U.S.C. 1391(e). 4
for judicial review of agency actions in the judicial district where an agency is headquartered or where the petitioner resides or has its principal business office. 15 Some states specify a different venue for review of adjudications. 16 For compact agencies, however, venue may be specified in a compact, in state statutes that implement a compact, or in conditions that Congress places on its consent, or venue may not be specified at all. Because a compact entity may act in a state where it is not headquartered, venue may be proper in more than one state court, thus increasing the opportunity for forum shopping. In this situation, a court must decide to hear the matter; dismiss the matter for refilling in another state s court; or possibly transfer the matter to another state s court as if it were as it were transferring to another court in its own state. In a case where a court must decide venue as between more than one state, it may look to general principles resolving conflicts-of-laws or forum non conveniens. Although not an administrative review matter, Gauntt Constr. Co. v. Delaware River and Bay Auth., 575 A.2d 13 (N.J. Super. A.D. 1990) provides an interesting look into, the difficult question of whether New Jersey or Delaware law should apply when both states have concurrent jurisdiction. The Columbia River Gorge Compact (codified at Or. Rev. Stat. 196.150 and Wash. Rev. Code 43.97.015) provides a good example of just how peculiar venue issues may become. Here, Congress consent contained a condition precedent that the state courts of Oregon and Washington shall have jurisdiction over any appeal of any order, 15 See, e.g., ORS 183.484 and RCW 34.05.514. 16 See, e.g., ORS 183.482, specifying venue for contested cases directly in the Court of Appeals. 5
regulation, or other action of the Columbia River Gorge Commission. 17 Congress consent and the compact are silent concerning venue. However, an Oregon statute provides that a petition for judicial review of a Gorge Commission decision must be filed in the Oregon Court of Appeals. 18 There is no similar Washington statute. Past practice for seeking judicial review in Washington courts has been to file in trial courts. Hence, judicial review may occur in more than one state and may occur at different levels depending on whether judicial review is sought in an Oregon or Washington court. Venue issues may also arise as within a state. For example, should venue lie within the judicial district where a state capitol is located (as might be for state agencies)? The Gorge Commission recently addressed this very question ;the Commission s brief on this point is attached. Venue in a state capitol s judicial district may be an erroneous de facto recognition that an independent compact entity is subject to that state s APA. IV. Primary Jurisdiction Primary jurisdiction applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. 19 There is no case law where a court has specifically declined to review a matter under the doctrine of primary jurisdiction. However, because one of the purposes of an interstate compact is to bring uniformity to the states, where state law is absent or differs, strictly applying the doctrine of primary jurisdiction may promote uniformity. 17 16 U.S.C. 544m(b)(6). 18 ORS 196.115(2)(a). 19 United States v. Western Pac. R.R., 352 U.S. 59, 63-64 (1956). 6
IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON IN AND FOR COUNTY OF CLARK JOSEPH A. and SANDRA S. BACUS, ) Husband and wife ) 91 Sprague Landing Road ) No. 04-2-06500-7 Stevenson, WA 98648 ) (509) 427-7868 ) AMICUS CURIAE COLUMBIA ) RIVER GORGE COMMISSION S Plaintiffs, ) POINTS AND AUTHORITIES ) CONCERNING SKAMANIA v. ) COUNTY S MOTION TO ) CHANGE VENUE SKAMANIA COUNTY, WASHINGTON, ) A Washington State County ) P.O. Box 790 ) Stevenson, WA 98648 ) ) Defendant. ) ) The Columbia River Gorge Commission respectfully submits this amicus curiae brief concerning proper venue for judicial review of a decision of the Commission. On March 2, 2005, Skamania County filed a motion to change venue for this matter from Clark to Skamania County or Thurston County. For the reasons contained in this brief, Thurston County is not the proper venue for this matter. AMICUS CURIAE COLUMBIA RIVER GORGE COMMISSION S POINTS AND AUTHORITIES CONCERNING VENUE 1
I. FACTUAL BACKGROUND In 1986, Congress adopted the Columbia River Gorge National Scenic Area Act (Act), 16 U.S.C. 544 et seq. The Act established the Columbia River Gorge National Scenic Area (National Scenic Area), granted consent to Washington and Oregon to enter into an interstate compact to create the Columbia River Gorge Commission, and established various management standards for the National Scenic Area. One of the important reasons for the existence of the Commission is to ensure uniform land use throughout the bistate region. Robert Packwood, The Columbia River Gorge Needs Federal Protection, 15 Envt l. L. 67 (1988); 132 Cong. Rec. 29,498 (1986) (statement of Sen. Packwood); Id. (statement of Sen. Evans). Washington and Oregon adopted the Columbia River Gorge Compact in 1987, and established the Commission. The Compact is codified at RCW 43.97.015 and ORS 196.150. The National Scenic Area Act states that the Commission is a regional agency. 16 U.S.C. 544c(a)(1)(A). The Commission may also be referred to as an interstate compact agency. The Commission is not a federal agency, is not a Washington state agency, and is not an Oregon state agency. See e.g., Brooklyn Bridge Park Coalition v. Port Authority of New York and New Jersey, 951 F Supp 383, 393 (ED NY 1997) (citations omitted). 20 20 The Eastern District of New York stated, Compact Clause entities are hybrids occupying a special position in the federal system. As the Supreme Court has recognized, a Compact Clause entity is really the creation of multiple sovereigns: the compacting states whose actions are its genesis, and the federal government whose approval is constitutionally required when the agency will operate in an area affecting the national interest. AMICUS CURIAE COLUMBIA RIVER GORGE COMMISSION S POINTS AND AUTHORITIES CONCERNING VENUE 2
As required by the Act, the Commission developed a regional Management Plan in conjunction with the U.S. Forest Service. Five of the six Gorge counties then developed land use ordinances that implement the Management Plan, and which the Commission determined were consistent with the Management Plan. 21 The Commission implements an ordinance in Klickitat County. As a result, all land use in the National Scenic Area will be consistent with the Management Plan. Columbia River Gorge United v. Yeutter, 960 F.2d 110, 112 (1992). To further ensure uniform land use, the Act requires the Commission to hear appeals of all land use decisions in the National Scenic Area. 16 U.S.C. 544m(a)(2). Finally, and most relevant here, the Commission must adopt internal rules that are consistent with the more restrictive of specified state statutes. 16 U.S.C. 544c(b). One of the specified statutes is the states administrative procedures acts. Id. This matter involves judicial review of a decision of the Commission. Bacus v. Skamania County, CRGC No. COA-S-04-01 (August 10, 2004), reconsideration denied (November 9, 2004). Skamania County asks this Court to change venue for this matter to either Skamania County or Thurston County, at the plaintiff s discretion. Skamania County s reason for suggesting Thurston County is The case is not covered by the Land Use Petition Act. It is therefore 21 Multnomah, Hood River, and Wasco counties in Oregon, and Clark and Skamania counties in Washington implement Scenic Area ordinances. Klickitat County, Washington refused to do so, so the Commission implements a Scenic Area land use ordinance there. AMICUS CURIAE COLUMBIA RIVER GORGE COMMISSION S POINTS AND AUTHORITIES CONCERNING VENUE 3
subject to RCW 34.05, the Administrative Procedure Act. See Sworn Statement of Peter S. Banks, attached as page 2 of Motion to Change Venue. II. THURSTON COUNTY IS NOT THE PROPER VENUE FOR THIS MATTER BECAUSE THIS MATTER IS NOT DIRECTLY SUBJECT TO RCW 34.05. For several reasons, RCW 34.05, the Administrative Procedure Act, is not directly applicable to this matter. First, as noted above, the National Scenic Area Act expressly requires: Applicable law: For the purpose of providing a uniform system of law, which in addition to sections 544 to 544p of this title, are applicable to the Commission, the Commission shall adopt regulations relating to administrative procedure * * * consistent with the more restrictive statutory provisions of either State. 16 U.S.C. 544c(b). As required by the Act, the Commission adopted such administrative procedures. See inter alia, Commission Rules 350-16; 350-60. 22 In this matter, as with all other administrative decisions, the Commission thus applies administrative procedures that have their genesis in both the Washington APA (ch. 34.05 RCW) and the Oregon APA (ch. 183 ORS). Because the Commission must make its decisions pursuant to standards derived from both states APAs, this Court must consider both statutes in its review of the Commission s decision. The Washington APA specifies venue inthurston County because that is where state agencies are headquartered. The Gorge Commission is not headquartered in Thurston County, nor Marion County, Oregon. Rather the Gorge Commission is headquartered in Klickitat County. 22 The Commission s rules are available on the Commission s website at http://www.gorgecommission.org/commission %20Rules.html. AMICUS CURIAE COLUMBIA RIVER GORGE COMMISSION S POINTS AND AUTHORITIES CONCERNING VENUE 4
Further, Oregon does not treat Oregon s APA as directly applicable to Commission decisions. ORS 196.115 contains numerous jurisdictional and venue standards for judicial review of Commission decisions brought in Oregon courts. ORS 196.115(3) lists only specific provisions of the Oregon APA that are applied to decisions of the Commission, except where the National Scenic Area Act provides otherwise. ORS 183.484, the Oregon APA provision allowing judicial review in Marion County, Oregon, 23 is not one of the provisions specified. Second, prior case law from the Washington Court of Appeals, Division III, provides that the provisions of the Scenic Area Act do not constitute a state program. Klickitat County v. State, 71 Wn. App. 760, 767 (1993). As such, the Washington APA should not directly apply to this matter. It applies only as specifically reserved in the National Scenic Area Act and Columbia River Gorge Compact. Third and similarly, an axiom of interstate compact law is that a court may not order relief inconsistent with the express terms of a compact. Texas v. New Mexico, 462 U.S. 554, 564 (1983). Again, the express terms of the Columbia River Gorge Compact require the Commission to make decisions based on its own administrative rule that is consistent with the more restrictive of Washington s APA and Oregon s APA. 24 If a court were to review a decision of 23 ORS 183.484 is the Oregon equivalent to RCW 34.05.514(1), which provides for venue in Thurston County. 24 Although the states APAs are reserved in Act, the Compact expressly incorporates the Act. See Art. I, sec. a. (codified at RCW 43.97.015 and ORS 196.150). AMICUS CURIAE COLUMBIA RIVER GORGE COMMISSION S POINTS AND AUTHORITIES CONCERNING VENUE 5
the Commission solely under the terms of one of those acts, then it may be ordering relief that is inconsistent with the Compact. Finally, there is precedent that Thurston County is not the prior venue for this matter. In a prior case involving a rulemaking decision by the Gorge Commission in 1993, Friends of the Columbia Gorge sought judicial review in Thurston County Superior Court. On motion from the Gorge Commission, Thurston County Superior Court changed venue and transferred the case to Skamania County. Friends of the Columbia Gorge v. Columbia River Gorge Comm n, No 93-2-2704-1 (Thurston County Sup. Ct. Dec. 1, 1993) (Order Granting Motion of Columbia River Gorge Commission). A copy of the Commission s motion, Friends response, and the Court s order are attached at Exhibit A to this memorandum. III. CONCLUSION In conclusion, because the Washington APA is not directly applicable to judicial review of Commission decisions, Thurston County would not be a proper venue for this matter. The Commission gives no opinion concerning whether this matter could properly be heard in Clark County or should be transferred to Skamania County. RESPECTFULLY SUBMITTED this day of April, 2005 JEFFREY B. LITWAK, WSBA No. 31119 Counsel Columbia River Gorge Commission AMICUS CURIAE COLUMBIA RIVER GORGE COMMISSION S POINTS AND AUTHORITIES CONCERNING VENUE 6