Clark County officials again deny mining company’s road request

Several months after denying a proposal from a Ridgefield-based mining company to redesignate a private residential road in rural Washougal as a public thoroughfare, the Clark County Council gave the request a second look.

But after nearly three hours of public testimony and discussion, Council members came to the same conclusion that they reached the first time.

During a public hearing on Dec. 2, the Council decided to stay with its decision to approve a recommendation from the County Public Works Director Ken Lader to deny a proposal from ZLP #5, LLC, to reclassify Southeast 356th Avenue as a public road, delivering another blow to the company’s long-standing hopes of resuming mining activity in the area.

“Aided by the 300-plus community members who submitted comments and provided powerful oral testimony, we exposed Zimmerly’s lies, dismantled their case and made it clear that this road dedication was simply not an option,” the nonprofit Gorge advocacy group Friends of the Columbia Gorge stated following the hearing. “By the end of the hearing, the Council had no choice but to let the proposal die a quiet death — without even taking a vote.”

At the end of the hearing, Councilor Sue Marshall said her “recommendation would be to take no action today and let our (previous) decision stand.”

“I think there are a number of questions that just can’t be answered now because fundamentally, (this issue is) premature in coming to the Council,” she said. “I think if the Zimmerly (family) chose to go through the standard process, that would take it out of Public Works and put it where I think it belongs, in Community Development, and a lot of these questions could be answered through that process. (With) the litigation, the eminent domain (question), there’s so much uncertainty, and I think that it would be a huge liability for the County.”

The hearing began with a presentation from Lader, who admitted that he didn’t “feel adequately prepared” as he usually does when presenting to the Council due to the “brief timeline brief timeline between the request for reconsideration (in late October) and today’s date, as well as a large amount of data from both the petitioner and opponents to the petition.”

“I did not have significant new information,” Lader told the Council. “The report that I have here is unedited, and it is the engineers’ report that was presented to Council in July. The slide show has the dates updated, but it is the same information.”

Council Chair Gary Medvigy asked the Council to revisit the road dedication request on Oct. 30, after expressing misgivings about his original vote.

“I have a sincere concern that I voted the wrong way on that road dedication for the Washougal Pit,” Medvigy said during the Oct. 30 Council meeting.

Medvigy attributed his doubts to “additional information” he had received since the July vote.

“We’ve had some mailings about the Washougal surface mine — the Washougal Pit, as we’ve called it,” he said during the Oct. 30 meeting. “Additionally, we’ve (received), from different sources, an updated status of resource material in the county. This was an updated report that debunks, if you will, the notion that we have plenty of local aggregate. All these issues weigh on my mind, (and) I would like to reconsider that issue.”

In response to a request for the “additional information,” Medvigy sent The Post-Record a letter, dated Oct. 18, 2024, written to ZLP#5 by Erick Staley, principal engineering geologist of Marylhurst, Oregon-based Fulcrum Geo Resources, which conducted studies in 2018 and 2021 of permitted aggregate reserves — raw materials such as sand, gravel, crushed stone, slag, and recycled concrete used for construction purposes — in Clark County.

The 2018 study concluded that Clark County was “facing challenges with its construction aggregate resources due to a limited and decreasing supply of permitted reserves combined with high demand in the rapidly growing county.” The 2021 study “demonstrated no additional mines had been opened to meet the county’s growing demand, yet the number of Clark County mines and aggregate reserves had diminished.”

Stanley stated that a 2024 update indicated that 14 of 21 permitted aggregate mining sites in the county are exhausted and are actively being reclaimed; are nearly complete with limited permitted reserves; or not producing construction aggregate.

“Only six of the permitted sites currently produce construction aggregate, with one additional site — the Washougal Pit — ready to produce construction aggregate if it were to become fully permitted by Clark County,” Stanley stated.

Medvigy indicated that he did not see any of that “additional information” in Lader’s updated report.

“When I read through the staff report, I thought, ‘Wow, this looks familiar,’” Medvigy told Lader on Dec. 2. “I think you’ve just confirmed that it’s basically the same staff report. With all the additional information that came in, I, for one, was hoping (to see something along the lines of), ‘OK, yeah, we didn’t consider this (before).’”

Marshall questioned why the Council was re-considering the request.

“Actually, I’m really surprised that this has come forward (again),” she said. “(Supposedly) there was some new information that was the justification for bringing this back to reconsideration. I don’t know what that new information is that warrants even bringing this back.”

‘Mapping error’ at heart of dispute

During the Dec. 2 meeting, Lader told the Council that Dennis Zimmerly, the co-owner of ZLP#5, asked him to address a “mapping error” the County allegedly made a decade ago.

“Basically, what he was saying to me is that we have land-locked the mine, and we can’t get access to it, and that this is due to a mapping error that was made following the process that started in 2011 through 2014, when the Washougal Pit was added to the SMO (surface mining overlay) map,” Lader said.

Jamie Howsley, Zimmerly’s attorney, referenced two maps, one showing “the actual mine permitted area, (in place) since 1972, since the permit was initially approved by the Department of Natural Resources,” and the current SMO map.

“Nothing has ever changed (from the original map),” Howsley said. “Clark County didn’t even regulate mining until 1980, when it adopted its first surface mining overlay and its first comprehensive plan. There was a very conscious effort to recognize pre-existing mine uses that were out there, and it was to ensure that those mines that had been permitted under the old regime would be able to continue viability until it was exhausted and depleted of its resource and reclaimed to be other and better uses.

“The concern is that this is a county zoning map-created problem. … We just ask that the Council support this request to allow us to move forward, correct this historical issue, and let us go on our journey towards getting this thing reopened.”

Oliver Orijako, the County’s planning director, refuted those allegations.

“When we are contacted about the assertion that there was a mapping error, typically, we start reviewing county records and work with GIS staff to find out if there is a mapping error,” he said. “Going back to the sections on the map that the County was using in the early 1980s, we couldn’t find any evidence of a mapping error. We went back to the work that the mineral land task force first did in 2011 and what the Council adopted in 2014. We found no mapping error.”

Report: Public road dedication ‘premature’

ZLP#5 co-owner Judith Zimmerly filed a proposal with the County in 2021 to dedicate Southeast 356th Avenue as a public mining-haul road in an effort to resume mining operations at the Washougal Pit, which was illegally mined by the Nutter Corporation from late summer 2017 until the summer of 2020.

The paved, private road, which is east of the Washougal city boundary, runs north from Southeast Evergreen Highway, and provides access to not just the Washougal Pit but also eight residential properties.

The original road-change proposal received more than 80 public comments from residents, who voiced strong concerns about the impact of the redesignation.

A report compiled by Lader recommended that the Clark County Council deny Zimmerly’s request.

“Acceptance of the dedication of this private road for establishment of a public road is premature,” Lader told the Council during its July 16 meeting. “The appropriate time for this process is post-reclamation of the ‘Washougal Pit.’ Conversion of the road will require a full land-use review, and due to current land ownership, successful establishment of the public road is unlikely without condemnation. Alternatively, the petitioners could submit the request through the standard application process for private to public road conversion.”

According to the Friends group, the petition asked Clark County to:

• Assume all liabilities and responsibilities for the proposed mining-haul road, including maintenance costs and other expenses, “placing an unfair and costly financial burden on taxpayers”;

• Invest significant taxpayer dollars to widen, relocate, realign or redesign the road to comply with public road standards and requirements because “sections of the proposed road are too narrow to serve as public roads”; and

• Fix multiple existing violations within the proposed public right-of-way, including unpermitted drainage ditches and underground utility lines that were previously installed to serve mining at the site, “thus saddling the taxpayers with even further costs.”

Lader’s report stated that the petition is “rife with issues and that the standard practice for conversion of a road from private to public would require, at a minimum, land-use and Washington State Environmental Protection Act (SEPA) review; legal establishment of right-of-way boundaries; examination of existing easements; and establishment of any needed easements, typically requiring a review of a variety of land-use and related code sections.”

According to that report: “The County engineer has determined that establishment of the road is possible. However, the conditions and ownership issues identified in this report must be resolved prior to establishment. Approval of this petition to establish the road will require … staff to resolve these conditions and property ownership issues.”

The report also stated that the County did not include the road in its six-year Transportation Improvement Program and has no plans to develop the road.

“Reviewing the road conversion separately from the operation of Washougal Pit and its land-use application would be an unusual step, because trip generation, concurrency and safety concerns are directly tied to approval and use of Washougal Pit, the road establishment itself, outside of the standard process, has no means to examine these aspects of a new public road,” the report stated.

Attorney Nathan Baker, who represents the Friends of the Columbia Gorge, said “the repeated efforts to pawn this road off on Clark County like a bad penny are shocking but not surprising, given (the company’s) past track record of illegal mining, brazen land-use violations, and disregard for the community and the National Scenic Area.”

“To date, the county engineer and the rest of the county staff have astutely recommended that the County should not consider making this a public road until after any mining and reclamation at the site are completed, and the County Council unanimously adopted that position in July,” he said. “That should remain the County’s position.”

Baker said he believes the proposal has “many problems,” including the fact that ZLP#5 does not own the full road surface; the numerous unresolved ownership disputes between ZLP#5 and the residents who live along the road; the illegality of the parcels containing the road; an unpermitted roadside drainage ditch along the roadway that violates National Columbia River Gorge Scenic Area rules; and a lack of sufficient traffic on a “dead-end road” to warrant dedication to public use.

“Accepting this road transfer would put the County on the hook for full environmental review, remedying the outstanding land-use violations, cleaning up the property titles, and maintaining and repairing the road in perpetuity, including from the extensive damage that would inevitably be caused by heavy gravel trucks during any mining operations,” Baker said. “The County should absolutely avoid assuming the numerous risks, costs and liabilities associated with this road.

“Shifting all the costs, burdens and liabilities over to Clark County would set a terrible precedent,” he continued. “For well over 20 years, Clark County has never agreed to accept the dedication of any longstanding private road to public use, let alone a private residential road proposed to be converted to use as a mining-haul road. The County should not reverse its longstanding policies and practices now, especially not to favor a single mining company in its desires to haul gravel out of the Columbia River Gorge.”

Washougal resident Allan Johnston said during the Dec. 2 public hearing that the County is not facing “a road issue,” but rather a “are we going to open the mine again?” issue.

“The legal ramifications of that mine are horrendous,” Johnston said. “The environmental ramifications are horrendous. The tourist impact is horrendous. You put another 100 trucks on that road with the new roundabouts, and you’ve got a mess. And we just did (Steigerwald Lakes National Wildlife Refuge improvements) for millions of dollars, and now we’re endangering that again by having mining. This is not about a road. This is about opening a mine and a can of worms that will (cost) many, many thousands of dollars (not just) for the people who resist this but also the County. You talk about a budget shortfall.”

Baker contends that Zimmerly is now “violating the National Scenic Area rules all over again.”

The Friends group sent an an enforcement complaint letter to the Gorge Commission and Clark County staff in November, advising the agencies of “new and ongoing land-use violations” currently taking place on Southeast 356th Avenue.

After the letter was sent, Zimmerly “temporarily ceased the new violations for a week and a half, no doubt because they were asking the County Council for the road dedication and were trying to be on their best behavior,” Baker said.

“However, now that the request for a public road dedication has been rejected for a second time, Zimmerly is apparently already back to violating the National Scenic Area rules,” he added. “(On Dec. 3), they hauled several dump trucks of material up to the site and are running equipment at the site. Once we get a better understanding of exactly what might be happening with this new activity, we will likely send another enforcement complaint to Gorge Commission and County staff.”