Washougal rock crushing raises alarm

Friends group, neighbors warn of illegal activity at mine in National Scenic Area

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A drone photo taken in mid-July shows equipment connected to what Gorge advocates say is an illegal rock-crushing operation at a Washougal mine in the Columbia River Gorge National Scenic Area. (Courtesy of Friends of the Columbia Gorge)

Friends of the Columbia Gorge and neighbors of a Washougal rock-mining operation are again appealing to Clark County officials to help stop what they say is illegal rock crushing happening inside the Columbia River Gorge National Scenic Area.

“This illegal rock crushing has been taking place for at least the past several days,” Nathan Baker, senior staff attorney for the Friends group, wrote to Clark County Deputy Prosecuting Attorney Bill Richardson on July 23, in an email showing drone photos of what appears to be a large blue rock crusher at the Washougal Rock Pit site.

Baker said the site’s owner and operators — Judith Zimmerly and Jerry Nutter of Nutter Corporation — have been “thumbing their noses at the county” and crushing rock despite a direct order by the county to cease and desist with all on-site rock-crushing activities and two hearings examiner decisions upholding the illegality of the on-site rock crushing activities.

“The public health, safety and welfare are being immediately and irreparably harmed by the noise, dust, water runoff and dangerous traffic created by the illegal rock crushing,” Baker wrote in his email to Richardson.

Previously, Baker and other Gorge advocates have accused the owners/operators of the Washougal rock mine of perpetrating “one of the largest and longest-running land-use violations in the history of the National Scenic Area.”

On Tuesday, Baker said the Friends group and more than a dozen Washougal rock pit neighbors involved in the complaint were still awaiting the county’s reaction to the rock-crushing operations.

“What will happen? That remains to be seen,” Baker told the Post-Record. “The county has four options at this point. Taking into account that rock crushing has been deemed a past violation and has been litigated … and resolved … the strongest approach would be criminal prosecution.”

If the county’s elected prosecutor is unwilling to prosecute the rock pit owner and/or operator for their alleged illegal activities in the National Scenic Area, there are less-extreme remedies, Baker said. Those include asking a superior court judge for injunctive relief as well as two options the county has already attempted — issuing an administrative notice and enforcement order and sending a “cease and desist” notice.

“The third and fourth options have already been pursued,” Baker said, adding that it was his understanding that the Washougal Rock Pit does not produce the type of rock that is typically used for crushing but, rather, was importing rock and crushing it at the Washougal site, which is expressly forbidden under National Scenic Area rules.

The Columbia River Gorge Commission is expected to issue an oral ruling on an ongoing case that could halt all mining operations at the Washougal Rock Pit on Aug. 13. The Friends, along with several of the rock pit’s Washougal neighbors, are hoping the Gorge Commission will find that the pit’s 1993 permit was voided after nearly two decades of inactivity.

In a letter to Clark County’s community development director Mitch Nickolds, a Washougal resident who lives next to the rock pit, said the mine’s owners and operators should be held to the same high standards imposed on residents living inside the National Scenic Area.

Rachel Grice told Nickolds her family moved on 356th Avenue in Washougal, the road leading to the mine, in 2017, and experienced “the horrible noise and dust” of more than 200 trucks running to and from the rock pit six days a week and participated in the county hearings examiner proceedings.

“(We) heard the ruling that rock crushing on the site is illegal and without a permit,” Grice wrote in her July 24 email to Nickolds. “Starting sometime last week, rock crushing started, verified by neighbors north of the mine who took pictures. Today we’ve witnessed trucks hauling crushed rock down from the mine. … As residents living within the (National Scenic Area), we are required to go through lengthy and costly permit applications to do any work on our property. It seems unfair that a mining company can seemingly do what they want without permits, especially when the work they do negatively affects not just the neighbors but everyone who drives on Evergreen and has to experience the traffic, noise and road damage from the trucks.”

Grice said the trucks are now entering the mine “as early as 5:30 a.m.” and coming out of the mine by 6:30 a.m.

“Please do all you can to investigate this matter and hold Zimmerly and Nutter to the standards the rest of us are expected to abide by,” Grice wrote to Nickolds.

On July 25, Nickolds responded to Grice, saying he was “reviewing the crushing activity matter” with his legal team “to determine a path forward” and would let Grice know what actions the county might take to address the alleged crushing activities.

Baker said Zimmerly and Nutter have been trying to resume rock crushing at the Washougal Rock Pit for several months.

In March, Jaime Howsley, the attorney representing Zimmerly, the mine’s owner, sent a letter to Nickolds asking the county to approve a “temporary rock crusher” at the site despite the recent county decision stating rock crushing was illegal at the mine.

Howsley argued the temporary, mobile rock crusher would act as a type of “demonstration project” to show how more modern technology might be utilized at the Washougal site.

“… in the modern context, rock crushers are mobile, making them able to respond when the demand is there,” Howsley wrote in his letter to Nickolds. “Furthermore, the mobile rock crushers can crush materials at a much higher volume and with significant reductions in noise, dust and other impacts that may have plagued older technologies. By allowing this demonstration, the county might rethink how to permit this technology.”

Howsley asked the county to approve the temporary, mobile rock crusher as a “demonstration project” through September 2019 “to demonstrate the effectiveness while the appropriate permanent permit is sought.”

Nickolds told Baker he never approved this “demonstration project.”

But the Friends lawyer said Nutter and Zimmerly didn’t seem to care about approval.

The mine owner and operator instead filed a new lawsuit in Clark County Superior Court as what Baker described as “a last-ditch, ‘Hail Mary’ effort” to get the appeal thrown out of the Gorge Commissioners’ jurisdiction and stop the Aug. 13 hearing in The Dalles, Oregon.

That lawsuit failed, Baker said, and the superior court judge ruled the Gorge Commission does have jurisdiction over the Friends and Washougal neighbors’ appeal to halt operations at the Washougal mine.

“At some point, they told the county they were going to go ahead and start rock crushing,” Baker said of the mine’s owner and operator. “In April, Nutter and/or Zimmerly started bringing rock-crushing equipment, including a shaker deck that shakes and sorts rocks and water tanks for washing rocks, to the site. They were staging this. They’ve been gearing up for this since April, but they didn’t start rock crushing until fairly recently. Then they started hauling rock off the site, which had not been happening for a while.”

Sean Streeter, another Washougal Rock Pit neighbor involved in efforts to hold the mine owners/operators accountable, said he believes Nutter, the mine’s operator, “is not a good corporate citizen, despite all the accolades people seem to give them.”

“The entire time this has been going on starting with the illegal reopening of the mine in October 2017, Nutter Corporation has behaved like they are above any law or regulation that causes them any level of perceived inconvenience,” Streeter told the Post-Record. “They do whatever they want, whenever they want and run over anyone who tries to get in the way. … The thing that really gets me is they bid on government projects all the time yet they have no respect for government regulations or process. How can you thumb your nose at Clark County and other government agencies and then continue to bid on lucrative government projects? The hypocrisy is overwhelming.”

Nickolds said he hopes to have more answers for Washougal neighbors and the Friends group by Friday, Aug. 2.

Zimmerly’s lawyer, Howsley, had no comment about the allegations of illegal rock crushing. Nutter did not return requests for comment in time for this newspaper’s print deadline.