| From West by Northwest.org Voices of the Northwest Sadler's Sense: Oregon's Supreme Court Take on "Takings" Flies on Eagle Wings By Russell Sadler Aug 19, 2005
Supporters of Measure 37, which requires compensation for any government land use regulation that diminishes the value of property, have been trying to introduce a radical concept into Oregon that overturns decades of settled law on what constitutes the “taking” of private property for private use. The Oregon Supreme Court just delivered a stinging rebuke to the “legal theory” the radicals and their lawyers are peddling. In the case of Coast Range Conifers v. the Board of Forestry, the Oregon Supreme Court unanimously delivered the message, “Oregon ain’t goin’ there.” The facts are not in dispute. In the Spring of 1998, a logging company named Coast Range Conifers acquired 40 acres of timber known as the Beaver Tract. Subsequently, a U.S. Fish and Wildlife Service employee observed two bald eagles in the area and a nest on a 31-acre site the company wanted to log. The bald eagle is listed as a “threatened species” under the Endangered Species Act. Coast Range Conifers offered a logging plan that prohibited logging within 400 feet of the nest, leaving 50 percent of the neighboring trees, and received a logging permit from the Oregon Department of Forestry. The company logged the 31 acres. Following the bald eagle nesting season, the company observed the nest was no longer occupied and offered a revised logging plan for the remaining nine acres of the Beaver Tract with larger buffer strips around the nest. The State Forester denied the permit. Coast Range Conifers filed suit complaining the government had taken their property by regulation and demanding compensation. Lincoln County Circuit Judge Robert J. Huckleberry denied the claim, ruling the regulation did not take private property. The company made its money on the 31 acres it logged. The Oregon Court of Appeals effectively reversed Huckleberry, ruling the regulation deprived Coast Range Conifers of its property on the remaining nine acres of the Beaver Tract by prohibiting further logging. In a unanimous decision, the Oregon Supreme Court reversed the judicial adventurism of the Court of Appeals and held the Department of Forestry’s regulation denying further logging did not required further compensation. The Oregon Supreme Court relied on long-established, well-settled legal principles. It was the plaintiffs and their lawyers who sought young judicial activists eager to overturn settled legal traditions. For decades, Oregon courts have held that government “takes” private property if it takes title to private property, grants public access to private property or deprives the owner of “substantial beneficial use” of their property. It is this last phrase that creates this dispute. There are decades of case law that define the phrase “substantial beneficial use” and the cases include the value of all the property involved in the dispute -- not just part of it. The supporters of Measure 37, some of whom helped pay the bills for Coast Range Conifer’s lawsuit, are enthralled by a radical legal theory popularized by right-wing law professors like Richard Epstein of the University of Chicago and some of his judicial and academic sycophants in the Federalist Society. They argue the “taking clause” in the federal constitution is meant to require compensation for any regulations that “interfere” with the profits of an individual or corporation, including regulations that promote health and safety of individuals. Under this theory, even minimum wage laws could require compensation for lost profits -- real or imagined. The Oregon Supreme Court served unambiguous notice that it ain’t buyin’. The unanimous opinion held that any decision about whether Coast Range Conifers was deprived of the value of its land must be based on the economics of the entire 40-acre parcel, of which the company logged 31 acres, and not the nine remaining acres where logging was prohibited because of the bald eagle and its status under the Endangered Species Act. The Oregon Supreme Court’s opinion also raised an issue systematically ignored by the right wing’s economic determinists. This is the long-settled issue that wildlife belonging to the state -- in this case the bald eagle -- must be held in trust for the public. The Court’s unanimous opinion held the state has a right to protect its property rights in the eagle, without “incurring liability under the takings clause by restricting private activity that would kill or injure the eagles and trespass on the public rights.” That’s not what developers and the timber industry want to hear. In its own quiet, dignified way, the Oregon Supreme Court has weighed in on debate over Measure 37 and its radical change in what triggers constitutionally required compensation for the routine regulation of private property in the public interest. Lawyers will appreciate the significance of this exchange of opinions between the Oregon Court of Appeals and the Oregon Supreme Court. The question is whether taxpayers will appreciate how the court is protecting their wallets. Copyright © 2005 by Russell Sadler For more information about bald eagles in Oregon see Eagle Viewing Directory, Oregon Russell Sadler is a journalist and a lecturer at Southern Oregon University. You may write him c/o publisher at westbynorthwest.org. Visit Sadler's Sense column's at West By Northwest.org: Sadler's Sense: Legislature's Sandbox Politics Irresponsible Sadler's Sense: Beyond Dorchester - Can Our Traditional Parties Stand for Anything Substantive? Sadler's Sense: The Oregon Gasoline Tax, Pork Barrel Projects and Big Brother Sadler's Sense: A Classic Conservative Judge Who Conserves the Law Sadler's Sense: On the Economic Ramparts--The Northwest, Defazio and CAFTA Sadler's Sense: Can Dissatisfaction Become a Wave for Political Sanity? Sadler's Sense: Oregon's Public Lands Patrimony in Danger Once Again Sadler's Sense: Driving a Road to State Religion? Sadler's Sense: Remembering Roy Lieuallen and his Legacy Sadler's Sense: The Big Sky Game: Manufacturers, Airlines and Competing Visions Sadler's Sense: On Death: Our Challenged Autonomy Sadler's Sense: Who Is in Charge of the State's Purse? Sadler's Sense: The Risks of Shifting Higher Ed.'s Costs and Who Pays Sadler's Sense: The Good Ship School Finance Is Sinking Sadler's Sense: Infrastructure Renewal Needed Sadler's Sense: The Unlikely Poster Child for Measure 37 Sadler's Sense: Of Myths, Money and Machines, Why We Blame the Owl Sadler's Sense: Not Window Dressing Sadler's Sense: From Constantine to George, God's Will and Secular Power Sadler's Sense: Credibility or State of Our State Sadler's Sense: Look in the Mirror, Oregon Sadler's Sense: Why We Must Pay the Piper Now Sadler's Sense: A Short History of Measure 30 © Copyright 2000-2004 by West by Northwest.org |
