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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 "Closed Area" 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 Philip Brendale, record owner of fee land within the exterior boundaries of the Yakima Indian Reservation (Reservation). *fn1" Specifically, the plaintiff seeks to impose its zoning and land use law on a development proposed by defendant Brendale within the so-called "Closed" area of the Reservation. 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 Brendale'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 Brendale property violated Section 1 of the Civil Rights Act of 1871. (Codified at 42 U.S.C. § 1983).

 The court has previously entered both a Temporary Restraining Order and a Preliminary Injunction which restrained defendant Brendale from changing the land use of the subject property (Ct. Rec. 12, 42). Thereafter, a four day trial was held and at its conclusion the court entered an oral decision favorable to the plaintiff. *fn2" (Ct. Rec. 128). 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 Yakima Indian Nation is a composite of fourteen (14) originally distinct Indian tribes who banded together in the mid-1900's for the purpose of negotiating with the United States. Pursuant to a treaty signed in 1855 and ratified in 1869, 12 Stat. 951, these various tribes ceded vast areas of land but also reserved an area for their "exclusive use and benefit". This reserved area is the Yakima Nation Indian Reservation (Reservation).

 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". 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. A state-maintained highway, U.S. 97, cuts across the southeastern portion of the area and several Bureau of Indian Affairs (BIA) maintained arterials provide access to the closed area's interior.

 Apart from the "exclusive use and benefit" language in the treaty, it is unclear when the "Closed Area" was officially declared off-limits to the general public. It is undisputed that by Tribal Resolution dated August 11, 1954, the area was declared "to remain closed to the general public" to "protect the [Closed Area's] grazing, forest and wildlife resources." Entry into the area was restricted to enrolled members of the Yakima Tribe, official employees, permittees and persons with bona fide business and property interests. Access to the area was further limited when, in May 1972, the BIA restricted the use of the federally maintained roads within the Closed Area to Tribal members and permittees who were either record land owners or associated with the Yakima Nation through employment, business, or in some way directly benefitting the Yakima Nation. *fn3"

 The Yakima Nation currently has a Courtesy Permit System which has expanded the original categories of permittees to include spouses and dependents of enrolled members, plus special groups or dignitaries visiting the reservation. For the stated purpose of the "protection and enhancement of its [Closed Area] natural resources, natural foods, medicines, game wildlife, [and] environment . . ." the permitted uses are limited to sight-seeing, hiking, camping and tribal, BIA, or family related business or activity. Permittees (i.e. non-tribal members) are specifically prohibited from hunting, fishing, boating, drinking, operating vehicles off established roads, camping at other than designated campsites and removing flora, fauna, petrified wood, other valuable rocks or minerals or artifacts. Ingress and egress is monitored and controlled by four tribally-operated guard stations. Tribal police and game officers patrol the interior of the 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.

 In May 1972, the Yakima Nation adopted a new zoning law, the Amended Zoning Ordinance, which remains in effect today. Like its predecessor, the Amended Zoning Ordinance expressly is made applicable to fee land. Besides that similarity, this twenty-seven page document resembles the original ordinance only in the composition of the Board of Adjustments and its function. Otherwise, it is much more detailed and comprehensive. Among other things, it establishes a requirement for building permits, minimum lot sizes, authorizes the establishment of Planned Development Districts, provides for Special Use Permits and creates five categories of Use Districts. These Use Districts are: Agricultural, Residential, Commercial, Industrial, and Reservation Restricted Area.

 The Reservation Restricted Area is another term for the Closed Area. It was established as a "special use district" to insure continuation of the Tribal natural resources and to insure the Treaty right of tribal members to have an area in which they can camp, hunt, fish, and gather roots and berries in the tradition of their culture. Within this district only the following uses are permitted:

1. Harvesting wild crops;
2. Grazing, timber production or open field crops;
3. Hunting or fishing by Tribal members;
4. Camping in temporary structures;
5. Tribal camps for the education and recreation of tribal members;
6. Construction and occupancy of buildings and structures constructed by the Yakima Nation or the Bureau of Indian Affairs to be used in the furtherance of tribal resources;
7. No building or other permanent structure or any appurtenances thereto other than those allowed in Sections 1-6 above shall be allowed in this district;
8. Any structure which is authorized in Sections 1-6 above shall be set back 200 feet from any waterway.

 These limited uses are the primary source of the present action.

 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.

 The fee lands within the Closed Area are zoned "forest watershed". This designation allows a diversity of uses including, for example, single family dwellings; commercial camp grounds; overnight lodging facilities having less than sixteen (16) units; restaurants; bars; general stores; souvenir shops; service stations; marinas; saw mills and the construction of dams for the production of electricity. The minimum lot size for this use district is one-half acre, but the average size of any subdivision or short plat must be two acres. The stated purpose for the Forest-Watershed District is to facilitate land and water conservation while accommodating residential, recreational and commercial uses.

 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, although it is not clear whether any Closed Area fee lands lie within an identified flood plain. Another of Yakima County's state-mandated land use regulations is its Environmental Ordinance which requires a review of the potential environmental impact of all non-exempt land use actions. None of the above-described regulations have been applied to trust lands on the Yakima Nation Reservation.

 The Brendale Property :

 Defendant Brendale owns a 160 acre tract of fee land approximately in the center of the forested portion of the Closed Area. *fn4" The 160 acre parcel was originally allotted to Brendale's great aunt, a member of the Yakima Nation, and later inherited by Brendale's mother and grandfather who were issued a fee patent in 1963. At his mother's death in 1972, the fee parcel passed to Philip Brendale.

 In January 1982, Philip Brendale filed four contiguous short plat applications with the Yakima County Planning Department. In compliance with the Environmental Ordinance, Mr. Brendale submitted an Environmental Checklist from which the planning department could assess the potential impact of his proposed development and decide whether an Environmental Impact Statement (EIS) was warranted. Having determined that the short platting did not require an EIS because it would not significantly affect the environment, the planning department issued a "Declaration of Non-Significance". Thereafter, the department notified interested parties, including the Yakima Nation, of its determination and requested comments. At the ...

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