Landowner takes case to Walden

   A regulatory nightmare has cost a Hood River landowner more than $135,000 to date -- and her expenses continue to mount.
   The cultural resource case of Cherry Trautwein has captured the attention of U.S. Rep. Greg Walden, who believes the time has come for the federal government to step in and review the overall effect of the Columbia River Gorge National Scenic Area Act on private property owners.
   Last year, the only flat areas of Trautwein's hillside property were declared off-limits for development after a handful of arrowheads, both broken and whole, were found there during an archaeological study.   

   "Maybe this is not a legal takings but morally it clearly is and it doesn't pass a straight face test," said Walden, R-Ore. "You shouldn't have to go to the press and to your congressman to get the cooperation you should have gotten in the first place."
   However, officials from both the Hood River Planning Department and Gorge Commission contend that Trautwein has not yet lost all use of her six-acre parcel since they are still working to find an acceptable building site. 
   "I really respect the dilemma Cherry is in and I've been impressed by her cooperative attitude in trying to resolve this dilemma," said Martha Bennett, executive director of the Gorge Commission. 
   But Trautwein contends she is being forced to outlay money to build a residence in order to protect what is left of her property value. She said the residential parcel was originally purchased solely for investment purposes.

Cherry Trautwein finds calm in the midst of her regulatory battle by spending time outdoors.
Photo by Jim Semlor

   She decided to bring her situation into the public eye after spending months trying to overcome Scenic Area restrictions that she believes are slowly stripping away her property rights and financial resources. 
   "I would have never dreamed that I'd lose the total use of my property, I never knew regulations could do that to you," said Trautwein, who under Scenic Area law cannot reveal the location of her "archaeological significant" holdings.
   After it became known that she was speaking out about the issue, Trautwein said she was even warned by one official that if someone then dug on her General Management Area land she could be liable for any damages to the site. 

   "If these people are so concerned about what is happening on my private property then why don't they buy it and manage it themselves?" asked Trautwein, who has been turned down in that offer by all the involved agencies, including the Confederated Tribes of Warm Springs, U.S. Forest Service and several archaeological and nature conservancy groups.
   She said that is only the first of several ironies about her situation, the greatest of which is that she continues to pay the $600 monthly mortgage payments on the land zoned for residential use ($4,000 of which was for interest only last year) and the full taxation value of a buildable parcel.
   "This is just very, very disturbing that she's had to go through this and how, basically, the government is confiscating nine-tenths of her property without any compensation," Walden said.

   In addition Trautwein said the only location now available for a home site is on a slope with a 30 percent grade and its development will require a special variance since its lies within a woodland buffer zone -- and in fact will necessitate the harvest of mature Ponderosa pine trees.
   "To protect whatever artifacts there might be under the ground I have to level off a lot of valuable vegetation above it," said Trautwein. 
   And, as she works out construction details with the county, which administers the local Scenic Area land-use laws, Trautwein said the final irony is that she never wanted to build a residence on the property at all.
   "I have to build a house now or I won't even be able to sell this land because of the deed restriction," she said. (Photo: typical West Coast arrowheads.)  

   Trautwein contends that her wake-up call over the complexities of Scenic Area property ownership came last spring when she sold the Hood River property for $125,000 -- contingent upon issuance of a building permit. When the new owners applied for that permit it triggered a standard reconnaissance survey by Mike Boynton, Forest Service archaeologist.
   After Boynton found several complete arrowheads and shards of others, the sale fell through. At that point Trautwein was forced by Scenic Area land-use regulations to spend more than $7,000 to hire an independent archaeologist to evaluate the significance of the find under criteria set up by the National Park Service. That study determined that the artifacts found on Trautwein's property were important enough that there should be no ground-breaking activity where other cultural resources might be buried. 

   In past legal cases Oregon courts have ruled that government regulation can effect a constitutional "taking" only when that condition is so restrictive that it deprives the owner of all economically viable use of the property.
   To avoid that possibility in Trautwein's case, the Gorge Commission and county planners began working to help her find an alternate building site. However, Trautwein said the small corner of her parcel left for construction will require a retaining wall, possibly a sand filtration septic system, and a lot of excavation -- all of which will necessitate great expenditure.
   "Where does it say in their (Gorge Commission) management plan that I have to jump through all these hoops to build a house I don't even want?" asked Trautwein.

   Allen Bell, senior Gorge Commission planner, said the mandates of the Scenic Area land-use management plan, adopted in 1991, were necessary to fulfill the primary purpose of the federal legislation, protection of cultural, natural, scenic and recreational resources.
   "On archaeological significant sites we look at mitigation measures appropriate to assure new development doesn't adversely affect resources," said Bell.
   At this point both Trautwein and Walden wonder if equal consideration should be given to the financial resources of a Scenic Area property holder.
   "Property rights are the cornerstone of America and when somebody has been affected in a dramatic way from being able to do anything on their land it raises people's hackles," Walden said.   (Photo by Bob Pool  © 2002)

   Oregonians appeared to share Walden's views in November of 2000 when they passed Ballot Measure 7 by a 52 percent majority (54 percent in Hood River). The new amendment to Article 1, Section 18 of the state constitution required payment to a property owner when any government restriction "for the public good" reduced the fair market value by any amount. However, Measure 7 has been hung up in the courts since its passage on a legal challenge that it violates the "separate vote" requirements of the Oregon constitution. While Measure 7 arguments are underway in the highest state court, its supporters have declared intentions to place several related versions on the November 2002 general election ballot. Opponents believe that if Measure 7 is upheld it will destroy land-use planning and endangered species protection laws.

   Meanwhile, the Gorge Commission has lost the first round in an Oregon regulatory takings case which also involves its archaeological resource laws. Last fall a Wasco County Circuit Court Judge awarded landowner Richard Murray $222,000 for lost property value caused by Scenic Area protection regulations. Bennett said once the final order is handed down on the Murray case the state and Gorge Commission will consider an appeal. 

Text and Jim Semler photo (C) 2001 Hood River News  Reprinted by permission