GLW Ventures, LLC. v. United States Department of Agriculture, U.S. Forest Service et al

Filing 44

ORDER denying 34 Plaintiff's Motion for Summary Judgment; denying 37 Defendant's Cross Motion for Summary Judgment; Case stayed pending the outcome of the County litigation. Signed by Judge Ronald B. Leighton.(DN)

1

HONORABLE RONALD B. LEIGHTON

2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

8
9
10

GLW VENTURES LLC,
Plaintiff,

11
12
13
14

CASE NO. C12-5140 RBL
ORDER DENYING MOTIONS FOR
SUMMARY JUDGMENT

v.
[Dkt. #s 34 and 37]
UNITED STATES DEPARTMENT OF
AGRICULTURE, U.S. FOREST
SERVICE,

15

Defendant.
16
17
18

THIS MATTER is before the Court on the parties’ cross motions for summary judgment
[Dkt. #s 34 and 37]. Plaintiff GLW is the current owner of approximately 110 acres of

19

undeveloped land located along the Columbia River Gorge. Its predecessor sold off many of the
20

rights of ownership (including limiting its right to develop the property) to the United States
21
22

Forest Service, in exchange for approximately 60% of the Property’s value. They did so by

23

conveying to the Forest Service a “Conservation Easement Deed,” under the Columbia Gorge

24

National Scenic Area Act. Both parties concede that the transaction was intended to advance

25

the Forest Service’s goal of limiting development in the scenic Gorge, while reserving to and

26

(preserving for) the owner the traditional uses of the property at the time of the conveyance—

27
28
ORDER - 1

1

farming and residential. The Easement Deed specifically reserved to the owner the right to

2

develop two legal, buildable lots on the Property:

3
4
5
6

The right is reserved to break the ownership into two tracts, Tract I being 62 acres
in farm and woodlot and 5 acres in homesite, and Tract 2 being 38 acres in farm
and woodlot and 5 in homesite. At the time of this easement, the right is
acknowledged that construction of two dwellings for use in conjunction with the
management of the two tracts if the proposed homesite is within the constraints of
the [Columbia River Gorge National Scenic] Act[.]

7

(Am. Compl. [Dkt. #4] Ex. A, Part II(B) (Easement Deed)). The Deed included a rudimentary
8

sketch of the location of the two parcels, but did not describe them legally in a metes and bounds
9
10

or “lot” manner. At the time of the Deed, the minimum lot size under the County Code (in

11

accordance with the Gorge Act was 40 acres, and each of the two parcels described in the Deed

12

met that minimum. Nevertheless, the parties agree that—absent the Conservation Easement

13

Deed—the owner of the entire tract would have four legal, buildable lots, because the existing

14

lots predated the Gorge Act and the 40 acre minimum lot size.

15

This case arises out of the current owners’ attempt to formally, legally define two legal
16
17

lots (so that they may develop one, and sell the other) and to nominally adjust the sketched

18

boundary line between the two building parcels, creating one 56 acre lot and one 51 acre lot. It

19

is undisputed that the resulting two lots (like the two sketched lots) would comply with the

20

minimum lot sizes in effect at the time of the Conservation Easement Deed.

21
22

GLW sought to obtain Skamania County’s approval of its lots and its Boundary Line
Adjsutment. The County initially determined that the Boundary Line Adjustment was

23
24
25
26
27
28
ORDER - 2

1

acceptable, but that it required the Forest Services’ approval. The Forest Service refused to

2

consent to the adjustment, for reasons1 that it has not, and perhaps cannot, articulate.

3

GLW sued, alleging a variety of claims, including allegations that the Forest Service’s
4

refusal to consent to its proposed land use action was an abuse of discretion. The gist of GLW’s
5
6
7

complaint is that the Forest Service is inaccurately and improperly construing the contract it
executed with GLW’s predecessor.
The Forest Service’s two primary defenses to this claim in this Court are internally

8
9
10

inconsistent, and are inconsistent with the positions they have since taken in the land use case in
Skamania County. On one hand, the Forest Service claims that it, like any private owner of an

11

interest in land, possesses “free will” and “unfettered discretion” to refuse to consent to the
12

Boundary Line Adjustment—even if is doing so based on a mistaken or incorrect interpretation
13
14

of the Conservation Deed. [Dkt. # 37 at 22] At the same time, the Forest Service claims that its

15

refusal is not an “action” at all, much less a “final action” subject to review under the Gorge Act

16

or the Administrative Procedures Act, and that it—quite unlike a private owner—is therefore

17

immune from any suit to determine the parties’ respective rights under the contract between

18

them.

19

Despite its reliance on its unique ability to deprive GLW of the benefits of the agreement
20
21
22

with impunity, the Forest Service subsequently took the remarkable additional step of actively
opposing GLW’s efforts to obtain Skamania County’s approval of the Boundary Line

23
24
1

It is undisputed that the Boundary Line Adjustment would not adversely affect the goals
of the Gorge Act any more than would the development of the two lots sketched as part of the
26 initial agreement. It appears that, despite the agreement it struck with GLW’s predecessor, the
Forest Service will not voluntarily honor the Conservation Easement Deed’s reservation of the
27 right to develop the Property consistent with both its traditional uses and the preservation goals
of the Gorge Act.
25

28
ORDER - 3

1

Adjustment. Indeed, after the County agreed that Forest Service approval was not required after

2

all, the Forest Service appealed the approval, arguing that the post-adjustment lots2 were not

3

legal under the County Code because one of the four legal lots exising as of today would be
4

reduced from 96 acres to less than 80—the current County minimum. In other words, the Forest
5
6

Service opposes recognition of the four existing legal lots, based on the Conservation Easement

7

Deed’s agreement to have only two (each less than 80 acres). But at the same time it opposes

8

recognition of the agreed-upon two lots because one of them will necessarily be less than 80

9

acres. And it claims that it is immune from any suit seeking to address what should be the

10

obvious inequity of this position.

11

The County apparently accepted the Forest Service’s argument that GLW has four lots
12

and cannot create a new lot of less than the 80 acre minimum.

Its hearing examiner determined

13
14

that it did not have jurisdiction to determine whether the Conservation Easement Deed created

15

two legal lots—leaving the construction of that Deed to this Court.

16
17
18

While the Court will not grant either party’s Motion for Summary Judgment, it will
determine and hold that either the Deed created two lots, or GLW is entitled to a rescission of it:
they have either four legal lots, or are entitled to two, without interference from its contracting

19

partner, the Forest Service.
20
21

The County’s initial approval of the Boundary Line Adjustment and the Forest Service’s

22

successful appeal of that determination are now on appeal in Skamania County. The Forest

23

Service argues that the outcome of that litigation could moot this case. The Court agrees. The

24
25
2

It appears that the Forest Service could (and presumably would) oppose recognition of
the 67 acre and 43 acre lots to which it specifically agreed—in exchange for the owner’s giving
27 up the right to develop its then-existing four lots—on this very same basis. This is a direct
breach of the agreement it struck with GLW’s predecessors.
26

28
ORDER - 4

1

Forest Service’s Motion for Summary Judgment seeking dismissal of Plaintiff’s lawsuit is

2

DENIED. GLW’s motion, seeking a determination of the parties’ rights and obligations under

3

the Conservation Easement Deed, is also DENIED. This case is STAYED pending the outcome
4

of the County litigation. The parties shall promptly notify the Court when that case is concluded.
5
6
7
8
9
10
11
12

If and when this Court is asked to re-open this case, it will entertain a Motion to Amend the
Complaint.
IT IS SO ORDERED.
Dated this 25th day of September, 2013.

A
RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER - 5