State Supreme Court declines to review lower court’s reversal of timber verdict

The Oregon Supreme Court has declined to review a decision by the state Court of Appeals that overturned a victory by Linn and 12 other counties, and 151 local taxing districts, in a $1.1 billion lawsuit over how the state manages timber harvests on some 700,000 acres of state forest lands.

Linn and the other counties earlier this summer asked the state Supreme Court to review the Court of Appeals decision, issued in late April, overturning the a 10-2 verdict in favor of the counties by Linn County jurors in the fall of 2019.

The state’s highest court denied the counties’ appeal without issuing an opinion on Friday, Sept. 16. The lower appeals court ruled last spring 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 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.

“Today’s announcement by the Oregon Supreme Court is disappointing,” said Roger Nyquist, chair of the Linn County Board of Commissioners, which was a leader in the lawsuit. “The underlying issue of forest practices on public lands is left unresolved. Until those issues are resolved, the risk of devastating wildfires to the public will continue to increase.”

Nyquist added that he hopes to “have a conversation about the matter with Gov. Kate Brown soon.”

“It’s the end of the road for what has been a false narrative for far too long … that it’s the public forestland’s obligation to provide the bulk of the revenues for local communities,” Ralph Bloemers, who represented fishing and conservation groups in the case, told Oregon Public Broadcasting.

John DiLorenzo, an attorney with Davis Wright Tremaine, which represented the counties, said he was “deeply disappointed” that the Supreme Court declined to review the decision.

“The people who live in these counties, unfortunately, will not be able to have the benefit of the funds their local governments should have been paid long ago and which they could have used for their schools, libraries, hospitals, public safety and other services,” DiLorenzo said.

“The Court of Appeals acknowledged that the relationship between the counties was contractual but that the way the forests are managed or not managed could be changed by the state without the consent of the counties. The implications of the Court of Appeals decision to allow the state to make unilateral changes (without consent of the counties) are far-reaching.

“Issues of this magnitude that directly affect the people of Oregon and impact future cooperation between local governments and the state government should have been decided by the Supreme Court, not the Court of Appeals.”

DiLorenzo said the Legislature needs to step in, since the Supreme Court wouldn’t hear the case.

“It is time for the legislature to serve the people by providing funds to rural schools, libraries, hospitals, public safety and county services so our citizens receive the support they were entitled to and so desperately need,” he said.