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State urges dismissal of county’s timber management lawsuit

Mateusz Perkowski

Capital Press

Published on July 11, 2016 1:50PM

Mateusz Perkowski/Capital Press    Oral arguments were held July 11 at the Linn County Courthouse in Albany, Ore., in a lawsuit that seeks $1.4 billion from the State of Oregon for allegedly insufficient timber harvests from state forests.

Mateusz Perkowski/Capital Press Oral arguments were held July 11 at the Linn County Courthouse in Albany, Ore., in a lawsuit that seeks $1.4 billion from the State of Oregon for allegedly insufficient timber harvests from state forests.

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ALBANY, Ore. — The State of Oregon is urging the dismissal of a lawsuit that alleges state forest management prioritizes environmental concerns to the detriment of logging.

Earlier this year, Linn County filed a complaint against Oregon for allegedly depriving multiple counties of more than $1.4 billion due to a forestry rule that emphasizes wildlife, water quality and recreation over timber harvest.

During oral arguments Monday in Albany, attorneys for Oregon said the case should be thrown out because the forests are meant to be managed for the greatest permanent value to the state, not to the counties.

This “greatest permanent value” is allowed to include many factors beyond timber production under laws that allowed counties to donate their burned and logged forests to the state government, said Sarah Weston, an attorney for the state.

“The statute does not require revenue maximization,” she said. “The statutes have always provided for multiple values and multiple uses.”

Counties acquired these forest lands by foreclosing on property tax liens during the Great Depression but turned them over to state ownership in exchange for a portion of future logging revenues.

Oregon’s attorneys claim that Linn County cannot sue the state to receive compensation for breach of contract, and that the county’s challenge to the “greatest permanent value” rule can only be heard by the Oregon Court of Appeals, rather than in a county court.

Because the lawsuit seeks to recover damages for insufficient logging in the future, it clearly intends to alter the meaning of “greatest permanent value,” said Scott Kaplan, another attorney for the state.

Either the state changes its definition or it’s potentially liable for hundreds of millions of dollars, he said.

“This is absolutely a challenge of state policies of forest management,” Kaplan said.

Linn County argued that contracts between the counties and the state government are enforceable.

“The counties gave up assets in exchange for promises,” said John DiLorenzo, attorney for Linn County.

Counties would not have donated vast tracts of land if they’d known the state would change the terms of the deal at will, he said.

“We believe that’s precisely what the state has done in this case,” DiLorenzo said. “Counties must have a way to enforce their bargains.”

More than 650,000 acres in Benton, Clackamas, Clatsop, Columbia, Coos, Douglas, Josephine, Klamath, Lane, Lincoln, Linn, Marion, Polk, Tillamook, and Washington counties were given to Oregon based on “promises and assurances” on which the state government has since fallen short, the lawsuit claims.

The law that lays out Oregon’s forest management obligations was written when the United States was preparing to enter World War II and must be understood in that context, DiLorenzo said.

At the time, the greatest value of the land was to produce a large amount of timber for the war effort, rather than to preserve wildlife habitat or aesthetic beauty, DiLorenzo said.

Legal precedents also indicate that Oregon was obligated to maximize revenue from those lands, he said.

Several environmental and fishing organizations claim this interpretation is erroneous.

The optimum management of state forests was bound to be contentious and so that question was left to the discretion of the Oregon Department of Forestry, said Ralph Bloemers, an attorney representing the groups.

“It’s not up to the county, or the timber industry, or the conservation community, what that should be,” he said.

There’s also nothing in the law stating that revenues take priority over other uses, Bloemers said. “It continues to be a huge gaping hole in their complaint.”

Linn County also argues the lawsuit should be certified as a class action, which would allow other counties to participate in the litigation.

There are numerous potential plaintiffs with common legal arguments that would be more efficiently resolved as part of a single case, Linn County claims.

The issue of class certification will be heard at another hearing that’s scheduled for Aug. 17 in Albany.



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