Capital Press File
ALBANY, Ore. — Linn County shouldn’t be allowed to represent other counties in a lawsuit seeking $1.4 billion from Oregon over its forest management practices, according to the state’s attorneys.
It’s also impractical for the case to proceed as a class action due to the different forest circumstances in each county, the state’s attorneys claimed during oral arguments Aug. 17 in Albany, Ore.
The county filed a lawsuit against the State of Oregon earlier this year, arguing that insufficient logging had cost 15 counties more than $1.4 billion.
The complaint claims these counties turned over ownership of forestlands to Oregon in the early 20th Century with the expectation the state would maximize timber revenues, but since 1998, forest managers have instead prioritized wildlife habitat, water quality and recreation values.
More than 650,000 acres were donated to Oregon by Benton, Clackamas, Clatsop, Columbia, Coos, Douglas, Josephine, Klamath, Lane, Lincoln, Linn, Marion, Polk, Tillamook, and Washington counties.
Linn County is seeking class action status for the lawsuit, permitting it to represent the other counties in the case.
Scott Kaplan, an attorney for Oregon, said the problems in managing the case as a class action would be “enormous.”
The counties donated 183 separate parcels of land to the state, each of which contains different slopes, tree types, waterways and federally- protected species, he said.
Determining how much timber could have been generated from each parcel would devolve into 183 mini-trials, he said.
“How can we decide if revenue has been maximized on a particular parcel unless you consider all of those issues?” Kaplan said.
Linn County is also an inadequate representative of the other counties for multiple reasons, he said.
The litigation costs are currently being paid for by timber groups and lumber companies — Oregon Forest & Industries Council, Sustainable Forests Fund, Stimson Lumber and Hampton Tree Farms.
Linn County is simply lending its name to a lawsuit that actually represents private interests, according to Oregon’s attorneys.
“It’s not a public interest case. It’s a case to benefit one particular group,” said Kaplan.
Unlike the counties, which appreciate tourism and other benefits from uses besides logging, the timber interests funding the lawsuit primarily want to change the state’s “greatest permanent value” rules for forest management to emphasize harvesting, he said.
Much of the alleged damages are for lost future timber revenues, which may force the state to change its logging policies, he said.
“That would directly challenge the interests of the other counties,” Kaplan said.
The case also doesn’t qualify as a class action because of the lack of “commonality” among the counties, which donated their land to Oregon during different times and under specific terms, he said.
The presence of threatened and endangered species, which constrain logging, varies widely by county and affects the damages calculation, he said.
“It’s a complicated issue involving federal agencies,” Kaplan said.
Chris McCracken, an attorney for Linn County, rejected the argument there’s a lack of commonality among the counties.
They all face the same issues, such as whether the state has violated its contract to maximize timber revenues, he said.
“We have common questions in droves,” McCracken said.
The Oregon Department of Forestry does not manage each parcel individually but instead treats them according to regional forest plans, he said.
Deciding the counties’ contractual rights collectively is more efficient than trying separate cases with potentially conflicting verdicts, he said.
McCracken also disputed that the lawsuit’s funding mechanism should disqualify it as a class action.
The Davis Wright Tremaine law firm would be entitled to 15 percent of any financial award in the case.
Contingency fees aren’t unusual in class action lawsuits, particularly since the counties are strapped for cash and could not afford such litigation on their own, McCracken said.
“There are no disabling conflicts between Linn County and the class members,” he said.
It’s irrelevant whether some counties prefer the forests to be managed for ecological or recreational benefits, McCracken said.
The lawsuit’s outcome won’t affect these priorities, he said.
“All that is sought here is money damages,” he said. “This lawsuit is not seeking to change the management of the forests.”
Linn County Circuit Court Judge Daniel Murphy said he would issue a ruling by Sept. 19 on the class certification issue as well as the state’s motions to dismiss.