State appeals court overturns jury’s verdict in ‘Timber Case’

By Scott Swanson
Of The New Era

The Oregon Court of Appeals last week overturned a $1.1 billion verdict in the “Timber Case” lawsuit brought by Linn County and 12 other counties and 151 local taxing districts over how the state manages timber harvests on some 700,000 acres of state forest lands.

In the appellate decision, announced April 27, the court found that the Oregon Department of Forestry did not violate an agreement between the counties and the state over timber harvests when the state balanced the financial benefits of timber production with environmental and recreational benefits.

The decision overturns a 10-2 verdict by Linn County jurors in the fall of 2019.

Linn County Commissioners Chair Roger Nyquist said he wasn’t surprised.

“We knew from Day 1 this was ultimately headed to the Supreme Court,” he said.

“We have no option at this point other than to appeal this decision. While we believe the law and the facts are on our side, the politics at the state level are not.”

State officials hailed the ruling.

“The Court of Appeals decision today is a victory for Oregon’s environment as well as for sound forest management,” said Attorney General Ellen Rosenblum last week. “The court agreed with the state’s legal position in recognizing that Oregon’s forests serve a full range of environmental, recreational, and economic uses that the Department of Forestry has authority to balance in order to secure the greatest value to all Oregonians.”

“In Oregon, we manage our forests not only for the benefit and prosperity of this generation but those to come,” said Gov. Kate Brown, adding that the decision “is a validation of the fact that a balanced, science-based approach to public forest management will produce the greatest long-term outcomes for all Oregonians, including the counties and taxing districts that receive revenue from state forests.

“Working together, I am confident the state and the counties can find a sustainable approach to supporting critical services for Oregonians.”

Jurors in the 19-day trial in 2019, presided over in Albany by Circuit Court Judge Thomas McHill, concluded that the state failed to comply with a 1931 state law, updated in 1941 as the Forest Acquisition Act, which allowed counties to convey land to the state but required that the state manage those lands “so as to secure the greatest permanent value of such lands to the state.”

The definition of “greatest permanent value” has been the key issue in the case, which regardless of which way the final decision goes, will have major effects on how the state manages its forestlands and whether counties can rely on money from state forests.

Over the decades following the passage of the Forest Acquisition Act, counties transferred some 600,000 acres of timberland to the state, much of it logged-over or burned, which became state forests managed by the Oregon Department of Forestry, with the “greatest permanent value” clause as the standard for management. The state’s responsibility was to restore them, provide fire protection and distribute timber revenues to the counties as they became available in the restorative process.

In 1998 the state Board of Forestry decreed that “greatest permanent value” would mean “healthy, productive, and sustainable forest ecosystems that over time and across the landscape provide a full range of social, economic, and environmental benefits to the people of Oregon.”

The new rules directed the State Forester to maintain forestlands and “actively manage them in a sound environmental manner to provide sustainable timber harvest and revenues to the state,” but also provides that that focus is “not exclusive of other forest resources,” and must be pursued “within a broader management context,” which includes a variety of environmental goals.

Those new rules, the counties contended, amounted to a contract change without their consent.

In its decision, the Appeals Court disagreed with the counties’ argument that “greatest permanent value” is “maximization of revenue at the expense of other kinds of value (neither economic or non-economic),” as the court’s opinion put it.

It also said that the state’s broader definition of “greatest permanent value” was “not a term in a statutory contract” between it and the counties, making it impossible for the state to have violated the terms.

The ruling gives the Oregon Department of Forestry the discretion to manage state forests for multiple uses in addition to profit, including clean water, wildlife protection and recreation.

Nyquist said the county is “disappointed” by the ruling.

He said the decision doesn’t do anything to resolve “economic challenges” and “problems caused by mismanaged state forest lands that face rural communities” that have resulted in “economic challenges.”

“They will live with deadly wildfires, due to the state’s refusal to live up to its agreement to manage state forest lands with the concept of ‘greatest permanent value’ to counties,” he said.

“The wildfires in September 2020 that caused death and destruction have changed the public’s attitude about forest practices. We hope that same change in attitude will take place with Oregon’s political class.”