Eagle ruling fuels property rights movement
August 19, 2005
By Mr. Tam Moore, Oregon staff writer tmoore@capitalpress.com
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In a case that property rights advocates and local government officials watched closely, the Oregon Supreme Court last week said regulatory taking of standing timber isn't entitled to compensation.

The August 11 decision overturns a 2003 Oregon Court of Appeals ruling in a case brought against Oregon Board of Forestry by Oregon Coast Conifers of Monroe. The decision turned on the family forestry corporation being able to log 31 acres of a 40-acre parcel, but not the 9 acres that are within 400 feet of an eagle nest.
Bald Eagles build large nests, called eyries, at the top of sturdy tall trees. Oregon forest practice rules require state consent for logging within 300 feet of a nest. The Oregon Department of Forestry insisted on 400 feet. - File Photo/Capital Press

“In determining whether the regulation at issue here deprived plaintiff of any economically viable use of its property, we focus on plaintiff’s ability to use the 40-acre parcel, not merely on its ability to use the nine acres of timber. Viewed from that perspective, plaintiff’s property has an economically viable use,” said the unanimous opinion, written by Justice Rives Kistler.

The litigation gained widespread interest in legal and environmental circles, in part because the bald eagle is protected by the federal Endangered Species Act, and the Oregon Constitution mirrors the U.S. Constitution, forbidding taking of private property for public use without compensation from government. The federal standard for compensation turns on whether a regulation strips a parcel of all economic value.

“I expect it is going to add a little bit of fuel on the fire of the property rights movement,” said Gene Grant, a lawyer with Portland’s Davis, Wright and Tremaine, who has written about legal implications of the case.

He noted that because the Legislature didn’t clarify some parts of Measure 37 -- last November’s restatement of public policy on regulatory taking -- there’s already an effort among property rights advocates to bring additional initiatives before Oregon voters.

Oregon’s Constitution copies part of the U.S. Constitution’s Fifth Amendment, declaring: “Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation.”

Coast Range Conifers sought land exchanges with the U.S. Forest Service in the 1990s to put sensitive wildlife habitat in public ownership and apply active management to the timberland it obtained. The 40 acres in question, located south of Waldport, came through a 1996 exchange with USFS.

The eagle nest was spotted when the timber harvest plan was developed in 1998. Oregon forest practice rules require state consent for logging within 300 feet of a nest. Coast Range proposed harvest to within 330 feet of the nest tree. Oregon Department of Forestry insisted on 400 feet. The Board of Forestry upheld the decision, and Coast Range sued for compensation in Lincoln County Circuit Court.

Coast Range Conifers filed a separate suit with the U.S. Court of Federal Claims in 2002, and terminated it in 2003, about the same time the Oregon Court of Appeals said the state should consider value of the 9 acres within the circle around the eagle tree.

In previous cases, the Oregon Supreme Court has found that “Regulation in pursuit of a public policy is not equivalent to taking for a public use.” The high court has yet to see any litigation of compensation claims arising from Measure 37, the initiative that says government either compensates or grants a waiver to regulations decreasing property value.

Kevin Neely, the Oregon Department of Justice spokesman, said this case has nothing to do with Measure 37.

Sara Leiman, who manages the family timber for Coast Range, told the Associated Press there’s no evidence the eagle nest was actually occupied.
Two Oregon Department of Fish and Wildlife biologists testified they saw a pair of adult eagles at the nest -- May 1, 1998.
Last week’s decision apparently means the eagle circle remains in force as long as the nest tree exists.

“The whole principle is how far do you go before the public helps” with species protection, Leiman told the AP.
“How much does the private landowner have to take care of before the public starts helping to pay?’’

The Associated Press contributed to this report. Tam Moore is based in Medford, Oregon. His e-mail address is tmoore@capitalpress.com
Copyright 2005, Capital Press.