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September 11, 1985

WHITESIDE, et al., Defendants

The opinion of the court was delivered by: QUACKENBUSH


 The Yakima Indian Nation (Yakima Nation) brought this suit seeking a declaratory judgment and injunction barring the defendants from taking or permitting any land use within the so-called "Open Area" of the Yakima Indian Reservation (Reservation) which is contrary to the Amended Zoning Regulations of the Yakima Nation (Yakima Nation Code). The named defendants are the Yakima County Commissioners; the Director of Yakima County Planning Department; and Stanley Wilkinson, record owner of fee land within the "Open Area." *fn1" Specifically, the plaintiff seeks to impose its zoning and land use law on a 32 acre parcel of land owned by defendant Wilkinson. Additionally, the Yakima Nation asks the court to limit Yakima County's regulatory authority over this property to the extent that the County's laws would allow land uses inconsistent with those permitted by the plaintiff. In other words, the plaintiff seeks a judicial declaration that its regulatory jurisdiction over Wilkinson's property is paramount and exclusive.

 The plaintiff's complaint also contains allegations of civil rights deprivations. More particularly, the Yakima Nation contends that the County's assertion of its zoning jurisdiction over the Wilkinson property violated Section 1 of the Civil Rights Act of 1871. (Codified at 42 U.S.C. ยง 1983).

 Following a four day bench trial the court entered an oral decision favorable to the defendants. (Ct. Rec. 81). *fn2" What follows is the court's written opinion including its Findings of Fact and Conclusions of Law. This written opinion shall supplement the court's oral opinion.


 The Reservation is located in southeastern Washington. It's exterior boundary encompasses approximately 1.3 million acres of land. Of this amount, about eighty percent of the land is held in trust by the United States for the benefit of the Tribe or its individual members (trust lands). The remaining land is held in fee by Indians or non-Indian owners (fee land). The majority of this fee land lies within the three incorporated towns in the northeastern part of the reservation -- Toppenish, Wapato and Harrah. The remainder is scattered throughout the reservation creating the now familiar "checkerboard" effect. The fee lands fall within the boundaries of Klickitat, Lewis and Yakima Counties.

 Most of the trust land lies within the Reservation's "Closed Area", an area accessible only by members of the Yakima Nation and its permittees. This area occupies essentially the western two-thirds of the Reservation. It covers approximately 807,000 acres, 740,000 of which fall within Yakima County. Of this latter figure, 25,000 acres are fee land. The Closed Area is predominately forested (about two-thirds), the balance being classified as range land. The topography of this area varies from the gently sloping range land along its eastern edge, to deep river valleys in the central part and finally to the mountain peaks of the Cascade Range along its western boundary.

 The "Closed Area" is relatively undeveloped. There are no permanent residences in the Yakima County portion of the area. Its abundant flora and fauna serve as a source of food for many members of the Yakima Nation; its forests provide substantial economic support; and its intangible and spiritual values play a significant role in the tribal culture. In sum, as this court found in Yakima Indian Nation v. Whiteside, et al., 617 F. Supp. 735 (1985) (" Whiteside I "), "the Closed Area is an integral part of the Yakima Indian Nation."

 The "Open Area", on the other hand, is strikingly dissimilar to the "Closed Area." As its name suggests, access to the area is not limited by the Yakima Nation and nontribal members move freely throughout the area. Compared to the predominately forested "Closed Area", the "Open Area" is primarily composed of rangeland, agricultural land and land being used for residential and commercial purposes. Another distinguishing characteristic is that almost half of the total "Open Area" acreage is fee land. That factor, coupled with the extensive county-maintained road system and the residential and commercial developments render the "Open Area" a sharp contract to the pristine, wilderness-like character of the "Closed Area".

 Tribal Land Use Regulations :

 In October 1970, the Yakima Nation instituted its first Zoning Ordinance. That ordinance was a six-page Tribal Resolution modeled after a similar Yakima County ordinance. The Zoning Ordinance designated all areas within the exterior boundaries of the reservation, both trust and fee lands (except the incorporated cities and towns) as being within the General Use District. All otherwise lawful uses were generally permitted except certain activities requiring a conditional use permit. E.g., asphalt mixing plants, junk yards, certain feedlots, above ground storage tanks, etc. The Board of Adjustment, composed of all the members of the Tribal Council, sat as the Board of Appeals from administrative decisions and the Hearing Board for conditional use applications. Its decisions were the final tribal action.

 The at-issue Wilkinson property is zoned "agricultural" by the Yakima Nation. According to the Amended Zoning Ordinance, that designation denotes that the "principal use of the land is for agricultural purposes." Buildings are prohibited on land zoned "agricultural", except as follows: agriculture-related buildings, agriculture products processing plants, buildings on public parks and playgrounds and single-family dwellings. The minimum lot size in an agriculture use district is five acres. The Yakima Nation's designation of the at-issue property as "agriculture" and the resultant limited uses is the primary source of the present litigation.

 Yakima County Land Use Regulations :

 As early as 1946 the County of Yakima regulated land use within its boundaries. This regulation was, however, not extensive until 1965 when the county adopted its first zoning ordinance which, as stated previously, was the model for the Yakima Nation's initial zoning ordinance.

 The present comprehensive zoning regulations, The Yakima County Code, was first enacted in 1972. It was struck down for a procedural defect, but readopted in its same form in October, 1974. Within its seventy-two pages, the Yakima County code identifies numerous specified use districts which generally regulate agricultural, residential, commercial, industrial, and forest-watershed uses. In the reservation area, the official county zoning map segregates the fee lands from the trust lands. The county does not apply its zoning law to trust lands.

 Yakima County has designated the subject Wilkinson property as "general rural." "General rural" is a use district established in a 1982 amendment to the Yakima County Code which eliminated a single "agricultural" designation and replaced it with three separate use districts: "exclusive agricultural;" "general agricultural;" and "general rural." Both the "exclusive" and "general" agricultural districts permit varied agriculture-related uses. The main difference between these two agricultural districts is that the former has a minimum lot size of 40 acres while the minimum lot size for the latter is 20 acres. Both agricultural districts, however, allow the parcel to be subdivided once every five years to create a lot no more than two acres but no less than one-half acre in size. The two agricultural districts are expressly designated to protect the county's agricultural land and prohibit or minimize the impact of uses which are inconsistent with agricultural uses.

 The "general rural" designation of the Wilkinson property, on the other hand, is designated to accommodate a broader range of uses. This district is intended to "provide protection for the county's unique resources and land base;" "minimize scattered rural developments . . . by encouraging clustered development;" and "permit only those uses which are compatible with [the] rural character." Although the "permitted uses" for this district are identical to those of the "exclusive" and "general" agricultural districts, the potential number and variety of uses possible via special use permits are considerably greater. The minimum lot size in the "general rural" district is one-half acre but the average size of lots created by a subdivision must be at least one acre.

 In addition to its comprehensive zoning regulations, Yakima County has other land use regulations applicable to fee land within the county. Its 1974 Subdivision Ordinance imposes standards for streets, water, sewage, drainage, parks and recreation areas, and school sites. The Yakima County Shoreline Master Program, adopted in 1974 as mandated by state law, regulates certain activities adjacent to shorelines. Also, as a participant in the federal flood insurance program the county attempts to control flood plain development. Another of Yakima County's state-mandated land use regulations is its Environmental Ordinance which requires a review of the ...

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