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Local governments fear a dispute over protection of a bald
eagle's nest on a tract of Coast Range timberland could hamstring
their ability to obtain routine easements and enforce setback
rules by making the cost prohibitive.
Oregonians In Action, the statewide property-rights advocacy
group, thinks local officials are blowing the case out of
proportion. OIA Legal Affairs Director Ross Day doesn't think
the court ruling in the coast case extends to the kind of
urban uses officials are concerned about.
However, two powerful local government lobbying groups, the
Association of Oregon Counties and League of Oregon Cities,
are planning to file an amicus curie brief in preparation
for an Oregon Supreme Court review. They hope the high court
will overturn the decision, and are asking their member agencies
around the state to sign on.
The Yamhill County commissioners have agreed to consider the
request. However, McMinnville City Attorney Candace Haines
said the city isn't planning to join in, saying the ruling
figures to have more impact in rural areas than urban.
Several years ago, Coast Range Conifers sought to log a 40-acre
tract of timber in Lincoln County. But a state requirement
that a buffer zone be left around an eagle's nest meant that
nine acres was off limits.
The company appealed to the state Board of Forestry, arguing
the nest was not in current use anyway, but lost. Then it
took its case to court.
The timber company lost at the circuit court level, but won
a favorable ruling from the state Court of Appeals last fall.
The appellate court ruled that the state restriction amounted
to a taking, entitling the company to compensation.
Local government officials fear the ruling could force them
to compensate landowners even for routine limitations on full
use of a property - such as rules prohibiting a house from
being built up against the sidewalk.
Tracking this potentially precedent-setting case is the environmental
group Community Rights Counsel, a Washington, D.C.-based nonprofit
that has made headlines recently in challenging the White
House to release documents related to the vice president's
meetings with oil industry officials.
CRC attorneys say the Oregon case hinges on whether the relevant
parcel is the nine acres that was termed off-limits to logging,
or the entire 40 acres - more than three quarters of which
was harvested.
Under the "whole-parcel" rule, which CRC staff attorney
Jason C. Rylander argues is a bedrock principle of takings
law, the relevant piece of land is the entire parcel. But
that's not what the court decided.
"The Oregon Court of Appeals is charting new ground,
eschewing the U.S. Supreme Court's rulings in favor of a new
and disturbing interpretation of state constitutional provisions
on takings," Rylander wrote in a memo now making the
rounds among city and county attorneys around Oregon.
"They basically reinterpreted Oregon's takings jurisprudence,"
said Lincoln County Counsel Wayne Belmont. "It's a rejection
of the whole-parcel rule."
Ross, whose sympathies lie with the private property owner,
thinks that's a gross overreaction. "This case can be
made to seem a lot worse than it really is," he said.
Ross said Oregonians In Action considered intervening on the
timber company's side, in its mission as an advocate for private
property rights, but decided the action wasn't warranted.
"I talked to the attorneys representing the company,
and they didn't think it would be a good idea to have everybody
and their brother jumping in and making a lot of noise,"
he said.
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